Colin Stuart t/a Little Bay Investment Ltd v Yego (Tribunal Case E079 of 2024) [2024] KEBPRT 1221 (KLR) (29 August 2024) (Ruling)
Neutral citation:
[2024] KEBPRT 1221 (KLR)
Republic of Kenya
Tribunal Case E079 of 2024
A Muma, Member
August 29, 2024
Between
Colin Stuart T/A Little Bay Investment Ltd
Applicant
and
Michael Yego
Respondent
Ruling
A. Parties And Representatives
1.The Applicant, Colin Stuart T/A Little Bay Investment Ltd., is the owner of Shop No. 113 located at Digo Bazaar situated in Diani, being the suit premises herein (hereinafter the “Landlord”).
2.The firm of Dagaye & Company Advocates represents the Landlord in this matter.
3.The Respondent, Michael Yego, is the tenant and had rented space for business in the suit property (hereinafter the “Tenant”).
4.The firm of Wonanio & Kabiaro Advocates represents the Tenant in this matter.
B. Background Of The Dispute
5.The Landlord moved this Tribunal vide a Reference and a Notice of Motion Application filed under a Certificate of Urgency both dated 14th March, 2024 on a complaint that the Tenant has refused to hand over vacant possession to the Landlord despite being issued with a Termination Notice as per the provisions of the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act.
6.In response thereto, the Tenant filed a Replying Affidavit dated 10th May 2024 and the Landlord correspondingly filed a Further Affidavit dated 5th June 2024.
7.The Tribunal directed that the Application dated 14th March 2024 will be canvassed by way of written submissions and accordingly, the Landlord filed its Written Submissions dated 3rd July 2024 while the Tenant filed his Written Submissions dated 10th July 2024.
C. The Landlord’s Claim
9.The Landlord submits that the nature of their tenancy is a controlled tenancy governed by a written agreement that commenced on or about February 2022 and was for a period of 5 years.
10.The Landlord also submits that the tenancy between itself and the Tenant had been terminated vide a Notice to Terminate dated 8th December 2023 (hereinafter “the Notice”) which was meant to take effect on 1st March 2024 being two months after issuance of the Notice.
11.It is the Landlord’s averment that the Notice was issued in accordance with the Landlord and Tenant (Shops, Hotel and Catering Establishments) Act which provides for termination of a controlled tenancy.
12.Ultimately, the Landlord urged the Tribunal to allow the Landlord’s Reference and Notice of Motion Application with costs to the Tenant.
D. The Tenant’s Claim
13.The Tenant agrees that the Agreement between himself and the Landlord began in February 2022 for the period of five (5) years subject to renewal upon the expiration of the Agreement in 2026 thus the tenancy is a controlled tenancy.
14.In light of the same, the Tenant avers that he had the firm believe that the tenancy was going to be a long-term business relationship and consequently invested heavily in the suit premises by erecting semi-permanent structures and conducting renovations on the let space with the full knowledge and consent of the Landlord.
15.The Tenant also states that the suit premises, which is situated on the ground floor of the building, was subject to leakage arising from the unfinished state of the first floor which was still under construction and heavy rainfall caused water to leak through the pipes containing electric cables leading to destruction of the Tenant’s electronics. The Tenant avers that he incurred a cost of Kshs. 56,000.00 for repair and replacement of the electronics and Kshs. 28,000.00 for repair of the leaking roof.
16.It is the Tenant’s averment that the Landlord instituted termination as a scape goat for compensating the Tenant for the aforementioned repairs.
E. List Of Issues For Determination
17.Having given full consideration to the submissions filed by Counsels, the issue for determination is;a.Whether the Notice to Terminate dated 8th December 2023 is valid and as such, whether the Tenant should hand over vacant possession to the Landlord?
F. Analysis & Determination
18.The Submissions filed by the parties raises fundamental issues discussed herein below:a)Whether the Notice to Terminate dated 8th December 2023 is valid and as such, whether the Tenant should hand over vacant possession to the Landlord?
19.The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 4(2) provides that:
20.Section 4(4) of Cap 301 further provides that:
21.In the case of Manaver N. Alibhai T/A Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 it was stated as follows;
22.Section 4(5) of the Act states:
23.In this case the Landlords issued the tenant with the Notice on 8th December 2023 which was to take effect from 1st March 2024. Based on the above provision, the said notice was to take effect after more than two months which is as per the Provisions of CAP 301.
24.Moreover, the Notice provided for the recipient to communicate whether or not they intend to comply with the Notice within one month after receipt thereof. This is in line with the provision encompassed in Section 4(5) of the Act which establishes the contents of an effective termination notice.
25.The main question for determination that remains before this Tribunal is with regards to the substance of the said Notice.
26.Section 7 of the Act provides for the grounds within which Landlord is allowed to issue a termination notice and at subsection (g) it provides as follows;
27.It is of equal importance to highlight the guidelines of opposing a termination notice as provided for in Section 6(1) of the Landlord & Tenant Act which states as follows:
28.Pursuant to the above provision, this Tribunal is of the view that the Tenant had sufficient time and means to oppose the Notice but he did not issue written communication that he did not agree to comply with the Notice within a month after receipt of the Notice. Neither did the Tenant refer the matter to a tribunal before the Notice was to take effect being 1st March 2024.
29.Inferring from the Tenant’s behavior as outlined hereinabove, the Tribunal is of the impression that the Tenant was willing to comply with the Notice as he did not follow due procedure of opposing the said Notice.
30.Therefore, it remains unclear why the Tenant refuses and/or neglects to hand over vacant possession to the Landlord whilst he had opportunity to legally oppose the termination notice before the date it was meant to take effect.
31.The Court opines that the Tenant is raising issues that are not pertinent to the matter at hand and whilst we hold high regard for the weight of the issues raised herein by the Tenant, the Tenant should have sought redress for the same in the manner prescribed by the law.
32.Accordingly, this Tribunal is guided by the provisions of the law encapsulated in the Landlord and Tenant Act and is inclined to uphold the validity and legality of the Termination Notice dated 8th December 2023 as it fully satisfies the requirements of a valid Termination Notice as per the aforesaid Act.
G. Orders
33.The upshot is that the Landlords Reference and Notice of Motion Application dated 14th March 2024 are dismissed with orders as follows:a.The Tenant is hereby ordered to hand over vacant possession to the Landlord within thirty (30) days after issuance of this Ruling;b.Upon the Tenant’s failure to comply, the Landlord is at liberty to break into the suit premises and take vacant possession of the same;c.O.C.S Ukunda Police Station to ensure compliance of these Orders; andd.Costs of the suit to be borne by the Tenant at Kshs. Ten Thousand Only (10,000.00)
HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 29H DAY OF AUGUST 2024 in the presence of Ms. Wanjiku for the Tenant and in the absence of the Landlord. HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNAL