Wakaimba v Thuku [2022] KEBPRT 847 (KLR)

Wakaimba v Thuku (Tribunal Case E059 of 2022) [2022] KEBPRT 847 (KLR) (Civ) (22 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 847 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E059 of 2022

Andrew Muma, Vice Chair

November 22, 2022

Between

David Mburu Wakaimba

Landlord

and

Jesse Mwaura Thuku

Tenant

Ruling

A. Parties and representatives 1. The applicant is the landlord and rented out space on the suit premises on LR No 209/223/3 to the tenant. ('hereinafter known as the 'landlord').

2. The firm of Maina Makome & Co Advocates represent the landlord/applicant in this matter.

3. The tenant Jesse Mwaura Thuku rented space on LR No 209/223/3 Nairobi for the business (hereinafter known as the ‘tenant’)

4. The firm of Ranah & Co Advocates represent the respondent/tenant in this matter.

B. The dispute background 5. The landlord and the tenant entered into a lease agreement dated November 3, 2015 for a term of five years. The tenant was to pay rent at the rate of Kshs 70,000 from 2015 to 2017 and thereafter at the rate of Kshs 80,5000.

6. October 7, 2022 the landlord issued the tenant with a notice to terminate tenancy on the grounds that the tenant had defaulted in paying rent and was in arrears amounting to Kshs 2,695,000. The said notice was to take effect on January 1, 2022.

7. There being no response from the tenant the landlord filed a notice of motion application under certificate of urgency dated January 12, 2022 under section 12(4) of theLandlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The landlord was seeking amongst other orders that the tenant give back vacant possession of the premises and that the tenant be compelled to clear their outstanding arears.

C. Jurisdiction 8. The jurisdiction of this tribunal is not in dispute.

D. The landlord’s claim 9. The landlord filed a notice of motion application under certificate of urgency and supporting affidavit dated January 12, 2022 which pleadings form the basis of this claim.

10. The landlord has also filed a replying affidavit in response to the application by the tenant dated April 14, 2022.

E. The tenant’s claim 11. The tenant has filed a replying affidavit dated April 13, 2022.

12. The tenant has filed an application dated April 11, 2022 seeking orders to restrain the landlord from levying distress.

13. The parties have filed submissions and the matter was fixed for ruling on November 22, 2022.

F. List of issues for determination 14. It is the contention of this tribunal that the issues raised for determination are as follows;a.Whether the notice issued by the landlord was valid?b.Whether there are any arrears owed to the landlord?

G. Analysis and findings Whether the notice issued by the landlord was valid? 15. Section 4(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that;4(2)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.4(4)No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party

16. The above provision requires that before the landlord can alter or terminate the terms of a tenancy, they must issue a notice of not less than two months to the tenant.

17. In the present case the landlord issued the tenant with a notice to terminate tenancy dated October 7, 2021 which was to take effect on January 1, 2022. The notice was issued on the grounds that the tenant had defaulted in paying rent and was in arrears of Kshs 2,695,000. Based on the provisions of Cap 301 the above notice satisfied the statutory period of two months and as such is deemed to have been valid.

18. The tribunal takes note that upon receipt of the notice, the tenant did not inform the landlord of their intention or lack thereof to comply by filing a reference as required under section 4(5) of Cap 301. Based on this, upon the expiry of the notice period the landlord proceeded to file the present application before the tribunal.

19. On March 24, 2022 the tribunal gave orders that the tenant pay rent for the months of January to May 2022 failure to which the landlord was given leave to distress. It is as a result of this order and the default by the tenant that the landlord proceeded to instruct auctioneers on April 8, 2022 to proclaim the tenant’s goods. It was not until this happened that the tenant filed the application dated April 11, 2022 seeking to prevent the landlord from levying distress.

20. Having perused the file I find that as is stands, the notice issued by the landlord is unopposed. This is premised on the fact that the tenant did not file a reference challenging the said notice. They also failed to file an application before this tribunal seeking to extend time within which to file the reference. As a result, the tribunal is inclined to uphold the validity of the notice dated October 7, 2021.

H. Ordersa.The landlord’s application dated January 12, 2022 is hereby allowed in the following terms;b.The notice issued by the landlord is declared valid.c.The tenant shall grant the landlord vacant possession of the premises within the next 30 daysd.Each party shall bear their own costs.

HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 22ND DAY OF NOVEMBER, 2022. IN THE PRESENCE OF RANAH FOR THE TENANT AND MAINA FOR THE LANDLORD AND JESSEE MWAURA TENANT IN PERSON.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL