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Nkubitu v Memeu (Tribunal Case 40 of 2021) [2022] KEBPRT 818 (KLR) (Civ) (8 November 2022) (Ruling)
Neutral citation:
[2022] KEBPRT 818 (KLR)
Republic of Kenya
Tribunal Case 40 of 2021
Andrew Muma, Vice Chair
November 8, 2022
Between
Joel M Nkubitu
Tenant
and
Justus Memeu
Landlord
Ruling
A. Parties And Their Representatives
1.The applicant is the tenant of the suit premises in this matter, who occupies plot No 250 situated at Ngara Estate, Meru (hereinafter the “tenant”).
2.The firm of C B Mwongela & Company Advocates represents the tenant in this matter.
3.The respondent is the landlord and owner of Plot No 250 situated at Ngara Estate, Meru, which he rented out to the tenant (hereinafter the “landlord”) at a monthly rent of Kshs 40,000 which was later increased to Kshs 50,000 as from April 1, 2021.
4.The firm of Wangoko & Company Advocates represents the respondent in this matter.
B. The Dispute Background
5.The landlord and tenant entered into an oral agreement on or about the year 2016, which agreement was reduced to writing on March 11, 2019. It was agreed upon that the tenant would remit a monthly rent of Kshs 40,000 to the landlord.
6.In the course of the tenancy, the tenant served upon the landlord a notice to obtain reassessment of rent or alteration of terms or conditions of tenancy pursuant to section 4(3) of the Landlord and Tenant Act. The tenant proposed alterations, including: revision of the existing lease agreement; rent reduction and clearance of inherited utility bills.
7.Consequently, the landlord and tenant executed a first amending agreement for sale dated December 17, 2020. However, contrary to the tenant’s proposal to reduce rent, the parties agreed to raise the monthly rent from Kshs 40,000 to Kshs 50,000 beginning April 1, 2021.
8.On July 16, 2021, the landlord served the tenant with a notice to terminate tenancy with effect from October 1, 2021, on the grounds that that the tenant had defaulted in paying rent and requiring him to clear the rent arrears before vacating the suit premises.
9.On September 14, 2021, the tenant filed a reference before the tribunal opposing the tenancy notice.
10.Consequently, the landlord filed a notice of motion application dated February 8, 2022 under certificate of urgency of even date. He sought inter alia, that pending hearing and determination of the application, the tenant and his agents/employees be ordered to settle the outstanding rent arrears.
C. Jurisdiction
11.The jurisdiction of this tribunal is not in dispute
D. The landlord’s Claim
12.The landlord filed a notice of motion application dated February 8, 2022 under certificate of urgency of even date, which pleadings form the basis of this claim.
13.The landlady filed a replying affidavit dated April 13, 2022 claiming inter alia, that the tenant had defaulted in paying rent thus amounting to breach of the tenancy.
14.Further, the landlord claimed that the tenant was in breach of the first amending lease agreement dated December 17, 2020 by building a permanent structure as opposed to a semi-permanent structure, on the suit premises.
15.The landlord filed a further affidavit dated August 18, 2022 in response to the tenant’s replying affidavit sworn on May 18, 2022.
16.Further, he filed submissions dated August 12, 2022.
E. The tenant/applicant’s Claim
17.The tenant filed a replying affidavit dated May 18, 2022 in response to the landlord’s notice of motion application dated February 10, 2022.
18.The tenant filed written submissions dated August 22, 2022.
19.The matter was fixed for hearing on November 8, 2022.
F. Issues For Determination
20.The issue raised for determination before this tribunal is whether the notice of termination was unlawful and contrary to the provisions of cap 301.
G. Analysis And FindingsWhether the termination notice issued by the landlord was lawful and contrary to the provisions of cap 301
21.At the outset, I refer to section 4(2) of the Landlord And Tenant Act (Shops, Hotels and Catering) Establishments Act cap 301.) which stipulates as follows:
22.In the present matter, the landlord issued the tenant with a notice of termination dated July 16, 2021.
23.Further, this tribunal makes reference to section 4(4) of the Landlord and Tenant Act which prescribes the period after which a notice of termination takes effect:
24.In this dispute, the termination notice stated that it would take effect from October 1, 2022. In light of the above statutory provision, the termination notice met the legal requirement given that it purported to terminate the tenancy after two months and two weeks from the date of issuance.
25.Concerning the grounds which the landlord relied upon to terminate the tenancy, this tribunal places reliance on section 7(1) of the Landlord And Tenant Act which sets out, inter alia, the following:…Where 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
26.In this case, the landlord asserted in his submissions that the tenant was in rent arrears of Kshs 253,772.00 for the period between January 2021 and February 2022. To buttress his assertion, he relied on the statements of account for the period January 1, 2021 to February 1, 2022.
27.This tribunal further notes that as per the landlord’s further affidavit dated August 18, 2020, the tenant made rent payment of Kshs 50,000 for the month of April. As such, it is presumed that both parties consented to the increase in rent.
28.In conclusion, I find that the termination notice was lawful given that the landlord stated that the notice would take effect as from October 1, 2021, which conformed to the timeline prescribed under section 4(5) of the Landlord and Tenant Act.
H. Orders
29.This tribunal makes the following orders. The upshot is that the notice of motion application dated February 8, 2022 and reference is allowed as follows;a.tenant to pay all outstanding rent on or before December 30, 2022, in default of which landlord is at liberty to distress for rent and take back vacant possession of the premises.b.tenant to continue paying Kshs 50,000/- per monthc.No orders as to costs.
HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 8TH DAY OF NOVEMBER 2022 IN THE ABSENCE OF PARTIES.HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL
