Automated Summary
Key Facts
The case involves Sammy Mwangi Kanini and Margaret Wanjiru Kanini (plaintiffs) seeking to nullify a notice to vacate a business premises they had leased for 15 years. The lease, dated 10 May 2022, was for five years with an option to renew. The landlord (1st defendant) served a termination notice on 7 November 2023, effective 1 February 2024, citing non-payment of rent for September and November 2023. The plaintiffs claimed they had cleared arrears by August 2023 and alleged the notice was defective. The tribunal ruled the notice valid under Section 10 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, dismissed the injunction application, and ordered costs to the defendants.
Issues
- The court determined whether the applicants were entitled to the injunctive reliefs requested in their application dated January 3, 2024, including nullifying the notice to vacate and restraining the respondents from interfering with their tenancy.
- The court also decided who is liable to pay the costs associated with the applicants' January 3, 2024 injunction application, typically following the event but subject to discretionary orders.
- The court considered whether the Tribunal should nullify the landlord's November 7, 2023 tenancy termination notice, which sought to end the applicants' 15-year tenancy by February 1, 2024, under the provisions of Cap. 301.
Holdings
- The interim orders previously issued in favor of the Applicants were discharged and/or set aside. These included orders restraining the Respondents from vacating the premises and interfering with the Applicants' tenancy.
- The Applicants' application dated 3rd January 2024 seeking various injunctive reliefs was dismissed with costs to the Respondents. The Tribunal found no basis for issuing the injunction as the Applicants failed to file a reference under Section 6(1) of Cap. 301 to challenge the landlord's notice to terminate the tenancy, rendering the notice effective from 1st February 2024.
- The Landlord's tenancy notice dated 7th November 2023 to terminate the Applicants' tenancy was approved in line with Section 10 of Cap. 301, Laws of Kenya. The Tribunal held that once a valid notice is served and not referred to a Tribunal, the landlord is entitled to possession without needing to prove the statutory grounds for termination.
Remedies
- The interim orders earlier issued herein are hereby discharged and/or set aside.
- The Applicants' application dated 3rd January 2024 is hereby dismissed with costs to the Respondents.
- The Landlord's tenancy notice dated 7th November 2023 is hereby approved in line with the provisions of Section 10 of Cap. 301, Laws of Kenya.
Legal Principles
The court applied the principles of interim injunction as outlined in Giella Vs Cassman Brown & Co. Ltd (1973) E.A 358, emphasizing the requirement for a tenant to file a reference under Section 6(1) of Cap. 301 to oppose a tenancy notice. Failure to do so results in the notice's automatic effect under Section 10, precluding injunctive relief.
Precedent Name
Saheb Vs Hassanally
Cited Statute
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
Judge Name
- Gakuhi Chege
- Joyce A Osodo
Passage Text
- 45. '...the landlord is entitled to possession without having to prove any of the statutory grounds relied upon in the notice.' (emphasis added).
- 40. In view of the foregoing, it is clear that the Applicants having failed to file a reference under Section 6(1) of the said Act cannot by any stretch of imagination be deemed to have established a prima facie case with a probability of success. Termination of a controlled tenancy being a lawful process envisaged under Section 4 of Cap. 301, Laws of Kenya cannot be stopped through issuance of an injunction by This Tribunal.
- 50. a. The Applicants' application dated 3rd January 2024 is hereby dismissed with costs to the Respondents.