Ngegeways Enterprises Limited v Kisumu Muslim Association [2021] KEBPRT 659 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 16 OF 2020 (KISUMU)

NGEGEWAYS ENTERPRISES LIMITED..........................TENANT

VERSUS

KISUMU MUSLIM ASSOCIATION................................LANDLORD

JUDGEMENT

This judgement and orders herein shall apply to KISUMU BPRT 17/2020 COPANA LIMITED VS KISUMU MUSLIM ASSOCIATION.

The Tenants herein filed a references dated the 27^th day of April 2020 in opposition of the notices to terminate issued by the landlord dated 24^th April 2020.

The issues arising for determination in these references are:

a. Whether the landlord satisfied the requirements of section 4 and specifically section 4(5) of the Act

b. Whether the landlord satisfied the requirements of section 7(1) ( f) and (g)

The complaint in the said references is that the Landlord had issued them with notices yet they had been running their trade and affairs for very many years.

It was also contended by the tenants that the Landlord’s notice was issued in bad faith. The tenants herein made a plea to the tribunal to be allowed to continue using the Premises as they had established long time goodwill.

The landlord’s notice as issued on the 24^th April 2020 indicates the grounds for seeking termination of the tenancy as,” The Kisumu Muslim Association requires the premises to establish its head office to run the affairs of the association ie require for personal use”

The Landlord filed a Replying affidavit on the 17^th day of May 2020, deponed on the same date by one SHEIKH MUSA ISMAIL HAJJI .

This matter proceeded to full hearing of the reference on the 5^th march 2021 with both applicants/tenants testifying and after the advocates by consent agreed to abandon all pending applications. The Landlord’s chairman also testified. All parties closed their respective cases on the same day.

It was the landlord’s case that the tenants herein were not in arrears but that they intended to take over the premises for use by the KISUMU MUSLIM ASSOCIATION as they intended to build their association headquarters there.

He further gave evidence that new officials were elected in 2019, that they held their first meeting and came to the realisation that they did not have an office to operate from.

SHEIKH MUSA ISMAIL HAJJI stated that they initially issued notices to terminate tenancy in Feb 2020 but had to re issue in April 2020; now the subject of this reference … after realising that the earlier one did not conform with the law. The tenants do not dispute receipt of the notices.

The landlord went further and stated that they were in the business of supporting orphans and widows and that they needed the premises back to themselves to build their head office and a community centre for the above group.

Produced as exhibits by the Landlord were resolutions by the new officials on the 29^th Dec 2019 and structural plans for the Intended development.

The tenants testified on oath and avouched to have received the said notices on 24/4/2020. It became apparent that there were deep issues between the landlord and the tenant in BPRT 17/20 as regards the tenancy generally and vacant possession.

Both tenants testified that they had been tenants in the premises for very many years and that they had built goodwill in their businesses in the premises herein. The tenant in BPRT 17/20 insisted that the notice to terminate tenancy was unreasonable and issued in bad faith and sought that he be allowed to continue running his business and continue paying the usual rent.

The tenant in BPRT 16/20 on the other hand stated that he had been in the premises for a long time but was not averse to moving out if given sufficient time.

ANALYSIS AND DETERMINATION.

Upon perusal and analysis of the filed documents and having heard the evidence of both parties and the exhibits therein, the issue for determination in this matter is whether the notices to terminate issued on the 24^th April 2020 are valid and whether they already took effect.

Section 4 of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act explicitly provides that there can be no termination and alteration of the terms and conditions of a controlled tenancy other than provided therein. It is evident from the documents filed by the Landlord that they indeed complied with the provisions of Section 4 (2) of the Act they issued a proper notice of termination to the Tenants on 24^th  April 2020.

On whether the notice to terminate tenancy was issued in bad faith or not, the landlord has demonstrated why it was and is necessary to have vacant possession of the property.  The grounds upon which the landlord sought to terminate tenancy have been set out in the notice, very clear and unambiguous.

The landlord further produced minutes of resolution and structural plans of the intended personal use which in my opinion is of great benefit to the community, the widows and the orphans.

The tenants alleged that the notices to terminate were done in bad faith and malice. Other than a mere statement of above, the tenants have not placed any material before me in support of their allegations , I therefore dismiss the same.

I do therefore find that the notices to terminate tenancy by the landlord in this case are valid.

The landlord has satisfied the requirements of section 7(1)(g) and (2) and section 4(5) of CAP 301 Laws of Kenya

The tenancy ended when the termination came to effect as it is provided for under Section 4 (4) and Section 10 of the Act and the notice. This crystallized the Landlord’s right to take over possession of the premises.

FINAL ORDERS.

As must be clear from the foregoing legal provisions and the reasons given hereinbefore, it is hereby ordered that;-

1. The References dated 27^th April 2020 are hereby dismissed.

2. The Tenants do vacate the premises and surrender possession to the Landlord immediately.

3. The OCS Kisumu Central Police station to ensure compliance of order 1 above

HON PATRICIA MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 11^TH DAY OF JUNE 2021 IN THE PRESENCE OF R. ODHIAMBO FOR THE TENANT, MAGANGA PRESENT FROM THE FIRM OF L.G. MAGEZES FOR THE LANDLORD.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL.