REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 139 OF 2021 (MOMBASA)
AZIZA HYDER........................................................................1ST LANDLORD
HILMY HYDER......................................................................2ND LANDLORD
VERSUS
GAMI QUERRIES LIMITED.......................................................1ST TENANT
RAMJI DHANJI GAMI................................................................2ND TENANT
RULING
1. By a motion dated 11th June 2021, the Landlords are seeking to recover vacant possession of a portion of land described as subdivision number 10947 (original number 3/1 section Mainland north) by evicting the Tenants therefrom.
2. They are also seeking that the Tenants be ordered to pay mesne profits from December 2020 up until delivery of vacant possession of the suit premises at the rate of Kshs.803,000/- and that the O.C.S Nyali Police Station be ordered to provide security and necessary assistance to the Landlords during recovery of vacant possession through eviction of the Tenants.
3. The application is supported by the affidavit of Aziza Hyder sworn on 11th June 2021 in which it is deposed that the Tenants have been irregular in payment of rent and on 29th September 2021 (sic) were issued with a notice of termination dated the 10th September 2020 (see notice marked B).
4. The effective date of the notice was 1st December 2020 and as such the termination took effect according to the Landlords after the Tenants failed to oppose the same by filing a Reference as required under section 6 of Cap. 301.
5. A letter from this Tribunal was procured on 21st April 2021 confirming that the Tenants had not filed a Reference.
6. The rent payable by the Tenants for the suit property was Kshs.50,000/-.
7. According to the Landlords, they contemporaneously with the notice of termination issued the Tenants with a notice to increase rent dated 29th September 2020 under Cap. 301 Laws of Kenya to Kshs.803,000/- from Kshs.50,000/- marked “E”.
8. The said notice was not opposed through a Reference as required under section 6 of Cap 301 and the Landlords contend that the notice took effect on 1st December 2020 and the new rent payable accordingly became Kshs.803,586/-.
9. The Landlords aver that the Tenants failed to vacate from the suit premises and hand over vacant possession and it is their case that they are unlawfully in occupation of the suit property.
10. The Landlords claim mesne profits of Kshs.803,586/- per month since December 2020.
11. The application was served as per the affidavit of service of Abdulswamad Said sworn on 7th July 2021.
12. The application is said to have been served upon one Margaret Kinuthia who is described as a manager of the 1st Tenant. She is alleged to have accepted service but refused/declined to sign despite having confirmed her awareness and full authority to receive the documents.
13. Although no response has been filed, this Tribunal is legally enjoined to interrogate every case presented before it and make informed decisions based on the establishing Act.
14. In line with the said legal duty, I note that the Landlords did not file any affidavits of service in respect of the notice to terminate tenancy or for increment of rent. In absence of evidence of service of the said notices, the same cannot be enforced or deemed to have taken effect.
15. Secondly, it is inconceivable that a Landlord can serve notice to terminate tenancy as well as notice to increase rent simultaneously as the two are not synonymous in effect.
16. I find and hold that one cannot seek to terminate a tenancy and at the same time or breath seek to increase rent upon termination of a tenancy. This makes nonsense of the whole exercise and it is untenable to have both notices served at the same time.
17. In any event the notice to increase rent by almost 2000% is not backed by any valuation report and given the mandate of this Tribunal to protect tenants of business premises from eviction or from exploitation by Landlords, such on increment is untenable in law.
18. In the premises, I find and hold that the Landlords application have no merit in absence of evidence of service of the notices aforesaid and the contradictory nature of the exhibited notices.
19. There shall be no order as to costs.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Mrs. Ali for the Landlord
No appearance for the Tenant/Respondent