[2024] KEBPRT 1628 (KLR)
The tribunal found that there was no affidavit or other evidence on record proving that the notice to terminate tenancy was served upon the tenant. The only affidavit of service filed related to service of the landlord's reference and hearing notice, not the termination notice itself. Since service of the...
Source-derived case information.
- Citation
- [2024] KEBPRT 1628 (KLR)
- Parties
- Applicant: Harry Kihima Bwosi; Respondent: Jane Naicar Eshuchi
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E176 of 2024
- Procedural Posture
- Landlord Tenant Reference / Ruling on Landlord's Reference for Termination and Eviction
- Outcome
- reference dismissed
- Judges
- CN Mugambi
- Legal Topics
- Business Premises Tenancy, Termination of Tenancy, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harry Kihima Bwosi
Applicant
Jane Naicar Eshuchi
Respondent
Procedural Posture
Landlord Tenant Reference / Ruling on Landlord's Reference for Termination and Eviction
Legal Issues
- 1 Whether the tenant was properly served with the notice to terminate tenancy as required by law.
- 2 Whether the landlord's reference for termination and eviction can succeed in the absence of evidence of service of the notice.
Ratio Decidendi
The tribunal found that there was no affidavit or other evidence on record proving that the notice to terminate tenancy was served upon the tenant. The only affidavit of service filed related to service of the landlord's reference and hearing notice, not the termination notice itself. Since service of the termination notice is a critical legal requirement under Cap 301, and the tenant's rights to respond are triggered only upon such service, the absence of proof of service rendered the landlord's reference without merit. Accordingly, the reference was dismissed.
Court Disposition
reference dismissed
Orders
- The landlord's reference dated 2.10.2024 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
Bwosi v Eshuchi (Tribunal Case E176 of 2024) [2024] KEBPRT 1628 (KLR) (23 October 2024) (Ruling)
Neutral citation: [2024] KEBPRT 1628 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E176 of 2024
CN Mugambi, Chair
October 23, 2024
Between
Harry Kihima Bwosi
Landlord
and
Jane Naicar Eshuchi
Tenant
Ruling
1. The Landlord’s Reference brought under Section 12(4) of Cap 301 is a Complaint against the Tenant on the grounds;“That the Tenant has not filed any Reference to oppose the termination notice served on her dated 10. 7.2024 and has expired. I request the rent Tribunal court and OCS Vihiga Police station order the Tenant to pay all rent arrears and vacate the business premises.”
2. The Tenant has not filed any Reference in opposing the notice to terminate her tenancy as indeed the Tribunal confirmed by its letter dated 2. 10. 2024.
3. Whereas that may be so, I am concerned whether or not the Tenant was actually served with the notice of termination of tenancy dated 10. 7.2024. I have perused the record and I have not seen any affidavit evidencing the service of the notice upon the Tenant. The only affidavit of service filed by the Landlord is the one sworn by one Mr. Wellington Mboku Odeyo on 8. 10. 2024 where the process server states that on 7. 10. 2024, he served upon the Tenant the Reference by the Landlord, to Tribunal a supporting affidavit and a hearing notice.
4. Service of the Notice to terminate tenancy upon the Tenant is critical because the Tenant can only take the steps contemplated under Section 4(5) and 6(1) of Cap 301 after receipt by herself of the tenancy notice.
5. In the absence of any evidence of service of the notice to terminate tenancy upon the Tenant, I do not find any merits in the Reference by the Landlord dated 2. 10. 2024 and the same is hereby dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF OCTOBER, 2024. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the absence of the parties