Wainaina v Burugu & another [2024] KEBPRT 320 (KLR)

Wainaina v Burugu & another (Tribunal Case E955 of 2023) [2024] KEBPRT 320 (KLR) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 320 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E955 of 2023

M Makori, Member

February 2, 2024

Between

Paul Ndungu Lucas Wainaina

Tenant

and

Lucy Wanjiru Burugu

1st LandLady

Ebenezer Housing Managment

2nd LandLady

Ruling

1. The present claim was filed vide an application dated 29" September 2023 supported by the supporting affidavit of Paul Ndungu Lucas Wainaina.

2. In response the Landlady filed a Replying affidavit dated 27h October 2023 denying the claims made and making claims of an existing rent arrears.

3. The landlady then filed submissions dated 15th of November 2023. From the totality of the pleadings filed by parties and submissions one issue arises whether the notice served by the Respondent/Landlady is contemplated in law.

4. In addressing this issue, I shall consider two aspects: the formal requirements of a notice for termination of a tenancy agreement and the Landlady's grounds for termination of the tenancy.

5. The tenant has in his application claimed that despite heavily investing in the suit property the landlady has illegally issued a notice via a text message. In response the landlady has vehemently opposed the application while making claim that the notice issued was sufficient and proper and confirms that she indeed issued a notice to vacate via text on the 318t December 2023.

6. For formal requirements of notice of termination of a tenancy I am guided by section 4(2) of the Landlady and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya (hereinafter referred to as the "Act") provides that; -“A Landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form."

7. Additionally, Section 4(4) provides that no tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, unless the terms and conditions of the tenancy provide for a period exceeding two months or the parties to the tenancy agree in writing to a lesser period of notice.

8. The two requirements therefore for a valid notice of termination of the tenancy is first, that the notice shall be in the prescribed form and secondly, that the notice shall not take effect until after expiry of two months, or such notice period as may be agreed by the parties. This was emphasized in the case of; Munaver N Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] eKLR, where the Court of Appeal at Mombasa in finding that the notice of termination of the tenancy was void for failing to comply with Section 4 of the Act stated as follows;“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the grounds on which termination is sought. The prescribed notice in Form A also requires the Landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice."

9. Additionally, according to Section 4(2) mentioned above, the Notice of Termination of tenancy should be the prescribed form, specifically Form A, as provided for in the Landlady and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, 1966.

10. The Landlady's notice of termination of the tenancy was not in Form A prescribed by the Act but rather in form of a message. The same is admitted in paragraph 9 of the landlady's replying affidavit. Further there is no assertion by the landlady of any other form of notice issued to the Tenant/ Applicant.

11. The notice of termination of the tenancy therefore does not meet the requirements of the Act with regard to being in a prescribed form.

12. According to Form A as provided in the Regulations above mentioned, the Landlady's notice to terminate the terms of the Tenancy herein should have specified;(a)The Landlady's premises occupied by the Tenant.(b)The duration of the notice of terminating the tenancy and the date when the notice is to take effect.(c)The grounds for termination of the tenancy;(d)The requirement that the Tenant should within one month notify the Landlady in writing whether or not the Tenant agrees to comply with the notice as from the date of receipt of the notice.

13. For Grounds for termination of the tenancy by the Landlady I am guided by the provision of section 4(1) of the Act provides that no tenancy shall be terminated, or no term or condition, or right or service enjoyed by the tenant shall be altered otherwise than in accordance with the provisions of the Act.

14. The Act further provides for the grounds on which the Landlady may seek to terminate the tenancy in Section 7 Landlady and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya the grounds stated under this provision and which are applicable herein include;(i)that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;(ii)that the tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant's use or management of the premises comprised in the tenancy; and(iii)that on the termination of the tenancy the Landlady intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises.

15. In the upshot and based on the foregoing the Tribunal finds that the reference by the Tenant is merited and makes the following orders; -(a)The Tenant's references dated 29* September 2023 is hereby allowed.(b)The landlady and/or his servants, employees' agents or any other person are prohibited and/or restrained from unlawfully interfering in any way with the tenant's quiet possession and enjoyment of the suit premise at Thika Makongeni Kiganjo.(c)The OCS Makongeni Police Station to enforce compliance with this order.(d)Each party shall bear their own costs.

RULING DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF FEBRUARY, 2024HON. MIKE MAKORIMEMBER2. 2.2024Delivered in the presence of Ms. Ombongi for the TenantMadam Lucy Wanjiru –Landlady present in person