Gikara v Maina (Tribunal Case E153 of 2023) [2023] KEBPRT 1176 (KLR) (19 December 2023) (Ruling)

Key Facts

Issues

• Whether the landlord's notice dated 1.08.2023 to increase rent was lawful under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, specifically considering mandatory notice requirements (Section 4(2) and (4) of the Act and Regulation 4(1) of the 1966 Regulations). The court determined the notice was defective and null due to non-compliance with prescribed notice periods and forms.
• Who should bear the costs of the suit. The court awarded the tenant costs of Kshs. 20,000 under Section 27 of the Civil Procedure Act, as her application was successful.
• Whether the tenant's application (seeking restraint from rent increase, penalties, and harassment) was merited. The court found the penalties unlawful and allowed the application, permitting rent payments of Kshs. 60,000 monthly without penalties, based on legal principles of irreparable injury and balance of convenience.

Holdings

• The court awarded the tenant costs of Kshs. 20,000/= under Section 27 of the Civil Procedure Act, as her suit was successful. The costs were to be offset against the rent, and the landlord was permitted to restart the rent adjustment process compliantly.
• The tenant's application was found to be merited. The court restrained the landlord from interfering with the tenancy, allowed the tenant to pay rent by the 20th of each month, and prohibited penalties for late payments. The tenant's request to pay rent without punitive charges was upheld under Section 12(4) of the Act.
• The court determined that the landlord's notice to increase rent from Kshs. 60,000/= to Kshs. 85,000/= was unlawful and null and void due to non-compliance with the mandatory requirements of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, and its regulations. The notice failed to meet the prescribed form and two-month notice period, rendering it invalid.

Remedies

• The termination notice issued by the landlord on 1.8.2023 is declared illegal, null, and void.
• The Applicant's application is allowed, and the reference is fully compromised and settled.
• The tenant is awarded costs of Kshs 20,000, which are to be offset against the rent payments.
• The landlord is permitted to invoke the provisions of the Landlord and Tenant Act to resuscitate his intentions regarding the tenancy terms.
• The tenant is required to continue paying rent at Kshs 60,000 per month on or before the 20th day of each month, without any penalties or additional charges.

Monetary Damages

Legal Principles

• The court concluded the reference was fully compromised and settled, with the Applicant's application found to be heavy in merit. The order for compromise and settlement was issued alongside the determination of the notice's illegality.
• Under Section 27 of the Civil Procedure Act, costs were awarded to the Tenant as the successful party. The costs (Kshs. 20,000/=-) were assessed to be offset against future rent payments.
• The court determined that the landlord's notice to increase rent was unlawful due to non-compliance with mandatory procedural requirements under the Landlord and Tenant Act. The notice was declared null and void as it failed to meet the prescribed form and notice period (Section 4(2) and (4) of the Act, Regulation 4(1) of the 1966 Regulations).

Precedent Name

• Caledonia Supermarket Ltd v Kenya National Examinations Council
• Giella v Cassman Brown
• Pius Kipchirchir Kogo v Frank Kimeli Tenai
• Ann Mwaura and 9 Others v David Wagatwa Gitau and 2 Others

Cited Statute

• Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301
• Civil Procedure Act
• Landlord and Tenant (Shops, Hotels & Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, 1966

Judge Name

Passage Text

• The landlord is at liberty to invoke the provisions of the Act and the Regulations thereof to resuscitate his aborted intentions.
• The only legitimate payments that may be due to the landlord by the Tenant is the Kshs. 60,000/= monthly rent.
• The upshot of this is that, the landlord's notice dated 1.8.2023 was unlawful and therefore null and void.