Case ID:201447

Gakenia v Kimita t/a Mwalimu Agencies Co. Ltd & another (Tribunal Case E007 of 2022) [2022] KEBPRT 245 (KLR) (Civ) (14 July 2022) (Ruling)

Case Metadata

Case Number:

Tribunal Case E007 of 2022

Parties:

Gakenia v Kimita t/a Mwalimu Agencies Co. Ltd & another

Date Delivered:

14 Jul 2022

Case Class:

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Gakuhi Chege

Citation:

Gakenia v Kimita t/a Mwalimu Agencies Co. Ltd & another (Tribunal Case E007 of 2022) [2022] KEBPRT 245 (KLR) (Civ) (14 July 2022) (Ruling)

Court Division:

Civil

County:

Nyeri

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Gakenia v Kimita t/a Mwalimu Agencies Co. Ltd & another (Tribunal Case E007 of 2022) [2022] KEBPRT 245 (KLR) (Civ) (14 July 2022) (Ruling)

Neutral citation:

[2022] KEBPRT 245 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E007 of 2022

Gakuhi Chege, Vice Chair

July 14, 2022

Between

Angela Gakenia

Applicant

and

Charles Munga Kimita t/a Mwalimu Agencies Co. Ltd

1

st

Respondent

Florence Njeri Mukura

2

nd

Respondent

Ruling

1.

The instant proceedings are based on a notice dated July 21, 2021. The said notice was issued by the Landlord to the tenant in respect of commercial premises situate on plot no. 667/24, Peni Tatu Hotel and was expressed to take effect on October 1, 2021.

2.

In one breath, the notice appears to be one for increment of rent from Kshs.14,900/- to Kshs.16,313/- per month on account of current rate of valuation.

3.

Under clause 3 of the notice, the notice sets out grounds of termination as failure to pay rent and being in monthly rent arrears of Kshs.4900/- per month for Eight (8) months totaling to Kshs.44,100/-.

4.

The notice of motion dated January 19, 2021 filed by the landlord is seeking for leave to levy distress on the tenant’s goods to recover rent arears. The landlord further seeks for orders of eviction against the tenant for failure to file a reference upon service of the “notice to terminate the tenancy”.

5.

The application is supported by the affidavit of the Landlord sworn on December 17, 2021 which is a date Eleven (11) months after the date of the application. This is a fatal defect considering that the application was filed on January 20, 2021 based on the court fees receipt on record.

6.

The application is opposed through the replying affidavit of the tenant sworn on February 25, 2022 wherein the tenant ought to increase rent and at the same time intends to terminate tenancy.

7.

I am required to decide whether the tenancy notice is valid or not. I am also required to determine whether to grant the reliefs sought by the landlord in the application dated January 19, 2022. Finally, I will decide on the issue of costs.

8.

Under section 4 (5) of

Cap. 301

, Laws of Kenya, a tenancy notice shall not be effective for any of the purposes of the Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing within one month after the date of receipt of the notice whether or not he agrees to comply with the notice.

9.

I have examined the tenancy notice issued by the landlord herein and one cannot tell whether it is for termination of tenancy or increment of rent as it covers both areas. It is in my view defective and incompetent. The tenant was perfectly in order not to file any reference and wait to see what action the landlord would take and defend at that point.

10.

The notice being defective and incompetent cannot be a basis for granting the reliefs sought by the landlord

vide

the application dated January 19, 2022. There is no foundation upon which the reliefs can be granted.

11.

On the issue of costs, they always follow the event and are in the court’s discretion. I have no reasons to deny the tenant costs of the reference.

12.

I therefore make the following orders:-

i.

The tenancy notice dated July 21, 2021 is defective, incompetent and as such ineffective, for purposes of

Cap. 301

, Laws of Kenya.

ii.

The Tenant is entitled to Kshs.10,000/- as costs to be defrayed against the rent account, if not paid within Thirty (30) days by the landlord.

iii.

The landlord is at liberty to serve a proper notice under section 9(3) of the Act.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14

TH

DAY OF JULY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling read in absence of parties.