Wambui v Njoroge & another [2024] KEBPRT 854 (KLR)

Wambui v Njoroge & another (Tribunal Case E1275 of 2023) [2024] KEBPRT 854 (KLR) (12 June 2024) (Ruling)

Neutral citation: [2024] KEBPRT 854 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1275 of 2023

Gakuhi Chege, Chair & J Osodo, Member

June 12, 2024

Between

Lucy Wambui

Tenant

and

Anne Wambui Njoroge

Landlord

and

Aziel Capital Agency Limited

Agent

Ruling

1. The tenant moved this Tribunal under Section 12(4) of Cap. 301, Laws of Kenya through a reference dated 19th December 2023 claiming that the landlord had issued her with an unlawful notice to vacate the suit premises situate on L.R NO. NGUNDU/BLOCK R024, NAIROBI by 31/12/2023. This was despite the tenant having paid rent in full and fulfilling all her obligations under the tenancy agreement.

2. She also complained that the landlord intended to evict her unlawfully and dispose off her assets without serving a valid termination notice under the provisions of Cap. 301, Laws of Kenya. She feared that the landlord would switch off water and electricity supply to her business premises. She moved therefore moved Tribunal to investigate the Complaint and make necessary orders including injunction to stop her and the agents from interfering with her enjoyment of the suit premises.

3. The tenant simultaneously filed a motion dated 19th December 2023 seeking restraining orders against the tenant in line with her Complaint pending hearing and determination of the application and reference.

4. The impugned termination notice is attached to the tenant’s supporting affidavit sworn on 19th December 2023 as annexure ‘LW3’. She also repeats the allegations set out in the Complaint in support of her application.

5. Interim orders were issued on 21st December 2023 restraining the respondents from evicting the tenant, switching off electricity or in any other manner interfering with her rights in the suit premises pending hearing of the application inter-partes.

6. On 10th January 2023, the tenant filed yet another application complaining that the respondents had failed to honor the orders served upon them and therefore sought that the OCS, Dagoretti Police Station does enforce compliance thereof. The application was directed to be served for hearing inter-partes.

7. On 16th January 2024, the 1st Respondent/Landlord sought for stay of execution of the ex-parte orders issued on 5th January 2024 pending hearing and determination of the application. She also sought for restraining orders against the tenant from executing the ex-parte orders delivered on 5th January 2024 whether by police assistance or otherwise pending the hearing and determination of the application. She also sought for setting aside of the ex-parte orders issued herein and that she be allowed to file her defence in the matter and that the matter proceeds to hearing de novo.

8. The application is supported by the affidavit of her advocate one Webster Kimathi sworn on 16th January 2024. The affidavit alludes to the proceedings which took place in this matter on 5th January 2024 without his participation. The said proceedings were conducted in the presence of the tenant’s Counsel and the landlord in person. The landlord indicated that she had no objection to the orders sought. As such, the application dated 19th December 2023 was allowed in terms of prayer 3. Consequently, the reference was marked as settled in terms.

9. On 27th March 2024, the 1st Respondent filed a replying affidavit wherein she denied that the 2nd Respondent was her agent in respect of the suit premises stating that Olive Joycare Estate & Property Managers Limited was her agent pursuant to a management agreement dated 4th July 2023 attached to her affidavit as annexure ‘AWN-2’.

10. She accuses the 2nd respondent of meddling with the management of the property since death of her husband one Lawrence Njoroge Kamau who was a joint owner thereof. She deposes that there is a case pending in Kikuyu Law Courts vide Civil Case No. E246 OF 2023 in which she seeks for orders barring the 2nd respondent from meddling with the management of the suit property. As such, she blames any disobedience of the orders of 5th January 2024 upon the 2nd respondent. She further deposes that the tenant does not pay rent to her despite having been notified her to directly do so vide annexure marked ‘AWN-3’ dated 6th June 2023.

11. It is to be noted that the 2nd respondent failed to comply with orders given on 1st March 2024 granting it 7 days’ leave to file and serve its response.

12. Despite being directed to file written submissions, none of the parties complied. We shall therefore proceed to determine the matter based on the materials on record.

13. The following issues emerge for determination in this matter;a.Whether the tenant is entitled to the reliefs sought in the reference.b.Whether the 2nd respondents notice to terminate tenancy dated 23rd November 2023 is valid.c.Whether the 1st respondent’s application dated 16th January 2024 ought to be allowed.d.Who is liable to pay costs of the suit?

14. It is not in dispute that the 2nd respondent issued a notice dated 23rd November 2023 upon the tenant seeking to terminate her tenancy in the suit property with effect from 31st December 2023. A cursory look at the said notice reveals that the same does not comply with Section 4(2) of Cap. 301 as it is not in the prescribed form neither does it comply with Section 4(4) thereof which stipulates a minimum period of two months.

15. Secondly, the landlord in her replying affidavit deposes that the 2nd respondent was not her agent and that it has been engaging in meddling with the suit property after the demise of her husband. The 2nd respondent did not file any response to the application and reference by the tenant despite being granted several opportunities to do so. In absence of any evidence to the contrary, we find and hold that the 2nd respondent had no capacity to terminate the tenant’s tenancy as it purported to do and the notice issued by it is therefore null and void for all purposes.

16. In view of the foregoing observations and holdings, the application by the 1st respondent’s application dated 16th January 2024 has no legs to stand on and is therefore a candidate for dismissal.

17. In regard to costs, the same are at the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. We shall order the 2nd respondent to pay costs of the suit to the tenant and the 1st respondent having fermented the dispute through issuance of the illegal termination notice dated 23rd November 2023 in an act of meddling with the suit property without the authority of the 1st respondent.

18. In conclusion, the following final orders commend to us in this matter;a.The tenant’s reference dated 19th December 2023 is allowed and the 2nd respondent is restraining from interfering in any manner with her occupation of the suit property situate on Title No. Dagorreti/Thogoto/4457 which is owned by the 1st respondent.b.The 1st respondent’s application dated 16th January 2024 is hereby dismissed for lack of merit.c.The 2nd respondent’s notice of termination of tenancy dated 23rd November 2023 is declared illegal, null and void.d.The tenant shall pay her monthly rent to the 1st respondent and in default, the 1st respondent shall be entitled to use lawful means to recover the same without recourse to this Tribunal.e.The 1st respondent shall allow the tenant peaceful occupation of the suit premises so long as she observes and preforms her obligations under the tenancy contract.f.The OCS, Kikuyu Police Station shall ensure that peace and tranquility prevails in the suit premises in line with the foregoing Tribunal orders.g.The 2nd respondent shall pay costs of Kshs 20,000/= each to the tenant and 1st respondent herein.It is so ordered.

DATED, SIGNED & VIRTUALLY DELIVERED THIS 12TH DAY OF JUNE 2024. HON GAKUHI CHEGE..................PANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE A. OSODO...................PANEL MEMBERBUSINESS PREMISES RENT TRIBUNALIn the presence of;Mungla for 1st respondent/landladyNo appearance for applicant and 2nd respondent