[2025] KEBPRT 220 (KLR)

Daniel v Kahihu (Sued as the Trustee for the Estate of, George Ndungu, Estate of Zacharia Ngugi, Ann Wahu Kahihu, Estate of Peter Kuria Kahihu, James Karanja Kahihu Thiongo & Martin Kahihu Muthiora) (Tribunal Case E1352 of 2024) [2025] KEBPRT 220 (KLR) (4 April 2025) (Judgment)

Neutral citation: [2025] KEBPRT 220 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1352 of 2024

Gakuhi Chege, Chair & J Osodo, Member

April 4, 2025

Between

Stephen Nzuki Daniel

Tenant

and

Elizabeth Wairimu Kahihu (Sued as the Trustee for the Estate of, George Ndungu, Estate of Zacharia Ngugi, Ann Wahu Kahihu, Estate of Peter Kuria Kahihu, James Karanja Kahihu Thiongo & Martin Kahihu Muthiora)

Landlord

Judgment

A. Dispute Background 1. The tenant/applicant moved this Tribunal vide a Complaint dated 5th December 2024 pursuant to Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 challenging a notice to terminate his tenancy over a business premises situate on Plot No. Nairobi Block 66/771 (formerly Dagoretti/riruta/771).

2. The said notice is dated 8th October 2024 and was expressed to take effect on 7th December 2024. It is based on the grounds that the lessor intends to demolish and thereafter reconstruct the entire premises comprised in the tenancy and to carry out substantial work of construction on the entire premises which cannot be reasonably done without obtaining possession.

3. According to the tenant, his lease is due to expire on 31st August 2025. It is the tenant’s case that the notice to terminate his tenancy is unfair and extremely prejudicial to his business as he has never failed to pay rent in time for the period of 10 years of his tenancy.

4. The tenant accuses the landlord of intention to lease out the premises to another tenant upon termination of his tenancy. It is for that reason that he decided to seek this Tribunal’s intervention to stop the illegal termination of his lease and eviction.

5. The tenant simultaneously filed a motion dated 5th December 2024 seeking for restraining orders against the landlord from evicting him from the suit premises together with a declaration that the notice of termination of his lease is illegal under Cap 301 and hence null and void.

6. The application is predicated upon the grounds set out on the face thereof and is further supported by the tenant’s affidavit of even date. The tenant attaches as annexure SNG—1 an addendum to the tenancy agreement dated 10th February 2017 entered between him and one Martin Kahihu Muthiora. The said tenancy agreement is for a period of three (3) years from 1st September 2022 to 31st August 2025.

7. It is further deposed that the landlord served him with a notice dated 8th October 2024 on 18th November 2024. The notice is attached as annexure SNG-2. The tenant deposes that he tried to resolve the matter through the Chief’s office without success.

8. In support of his allegation that the landlord intends to bring in a new tenant, the Applicant attaches a copy of questionnaire for public participation by the proposed tenant as annexure SNG-3.

9. Interim ex-parte orders were granted on 6th December 2024 restraining the tenant’s eviction from the suit premises pending hearing inter-partes on 17th December 2024.

10. In response to the application, the respondent filed her replying affidavit sworn on 24th January 2025 in which she deposes that she holds legal title to the suit premises in trust for the estate of George Ndungu, estate of Zacharia Ngugi-Ann Wahu, estate of Peter Kuria, James Karanja & Martin Kahihu Muthiora.

11. According to the respondent, the tenancy agreement relied upon by the tenant is null and void as it is executed between him and one Martin Kahihu Muthiora who is not the registered proprietor of the suit property. As such, he did not have ability to enter into any tenancy agreement over the suit property nor pass any interest or title.

12. It is also the respondent’s case that the said Martin Kahihu Muthiora should have been sued as the landlord in this case and as such, there is no cause of action in the instant reference. The respondent denies knowledge of any attempts to resolve the matter through the Chief’s office.

13. The respondent further deposes that she is engaged in a venture to redevelop the premises and that her family intends to demolish and reconstruct the premises which will involve substantial work of construction on the entire premises which cannot reasonably be done without obtaining possession thereof.

14. Any default on her part will expose her and the family to severe financial consequences from which they will not possibly recover. Granting the injunction orders sought by the tenant will prejudice rights of the third party who has expended time and money towards redevelopment of the property.

15. The respondent has attached as annexure EWK a list of 14 documents to demonstrate her intention to redevelop the suit property.

16. The tenant filed a further affidavit sworn on 7th February 2025 wherein he deposes that he sued the respondent as the person who served him with the impugned notice. He deposes that he has been paying rent to Martin Kahihu Muthiora who is one of the beneficiaries of the estate of George Ndungu and that the respondent is the administrator of the estate. According to the tenant, each tenant has entered into an agreement with different beneficiaries of the estate and the respondent has her own tenants who pay rent to her.

17. It is the tenant’s position that his landlord has not given him notice to vacate from the suit premises nor refused to take rent from him. The tenant deposes that the said Martin Kahihu Muthiora informed him that the respondent was acting without his knowledge.

18. The tenant deposes that he should be allowed to finish his term of tenancy as per the lease agreement dated 10th February 2025 as he has invested a lot in his business before the tenancy can be terminated by either the respondent or Martin Kahihu Muthiora.

19. On 28th January 2025, both parties were directed to file written submissions. The tenant’s Counsel filed submissions dated 26th February 2025 while the landlord’s submissions are dated 10th March 2025.

B. Issues for determination 20. The following issues arise for determination; -a.Whether the respondent’s tenancy notice dated 8th October 2024 is valid or not.b.Whether the tenant is entitled to the reliefs sought in the reference and application dated 5th December 2024. c.Who shall bear the costs of the suit?Issue (a) Whether the respondent’s tenancy notice dated 8th October 2024 is valid or not.

21. The tenant/applicant moved this Tribunal vide a reference dated 5th December 2024 pursuant to Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 challenging a notice to terminate his tenancy over a business premises situate on Plot No. Nairobi Block 66/771 (formerly Dagoretti/riruta/771).

22. The said notice is dated 8th October 2024 and was expressed to take effect on 7th December 2024. It is based on the grounds that the lessor intends to demolish and thereafter reconstruct the entire premises comprised in the tenancy and to carry out substantial work of construction on the entire premises which cannot be reasonably done without obtaining possession.

23. According to the tenant, his lease is due to expire on 31st August 2025. It is the tenant’s case that the notice to terminate his tenancy is unfair and extremely prejudicial to his business as he has never failed to pay rent in time for the period of 10 years of his tenancy.

24. The tenant accuses the landlord of intention to lease out the premises to another tenant upon termination of his tenancy. It is for that reason that he decided to seek this Tribunal’s intervention to stop the illegal termination of his lease and eviction.

25. The tenant attaches an addendum to the tenancy agreement dated 10th February 2017 entered between him and one Martin Kahihu Muthiora as annexure SNG-1. The said tenancy agreement is for a period of three (3) years from 1st September 2022 to 31st August 2025.

26. The tenant submits that he sued the respondent on the basis that she is the one who served the impugned termination notice upon him although his tenancy arrangement was entered into with Martin Kahihu Muthiorawho is one of the administrators of the estate of George Ndungu. It is however admitted that the respondent is the administrator of the said estate.

27. The tenant disputes the validity of the termination notice on the basis that it does not comply with Section 4(4) of Cap 301which provides as follows: -4. No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein:Provided that—i.where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated.” (emphasis added).

28. It is the tenant’s contention that on the basis of the foregoing provision, his tenancy was for Ten (10) years expiring on 31st August 2025 and cannot be terminated before expiry or lapse of the lease. In support of the submission, the tenant relies on this Tribunal’s decision in the case of Jennipher -Vs- Kiarie & 2 others (2024) KEBPRT 1118 (KLR).

29. Citing Munaver N. Alibhai t/a Diani Boutique -Vs- South Coast Fitness & Sports Centre Limited (1995) eKLR, the tenant submits that the landlord/respondent did not follow the proper procedures in respect of the period of termination and prescribed format and as such, the same should be declared null and void.

30. On the other hand, the respondent relies on Section 2(1) of Cap 301, which defines a landlord as follows: -“landlord”, in relation to a tenancy, means the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy.”

31. The landlord buttresses the argument with the decision in the case of Neff Autospares Limited Vs Ramnbhai G Patel & 2 others (2019) eKLR KELC135 (KLR) wherein Lady Justice C.K Yano held as follows: -“…There is no dispute that as trustees, the Respondent was in relation to payment of rent, the Appellant’s landlord…….’.

32. As the administrator of the estate of George Ndungu (deceased) and the registered proprietor of the suit property, the respondent is the tenant’s landlord in respect of his business premises and was therefore entitled to issue the impugned notice. We have not seen any rent payment receipts or any other evidence that the tenant pays rent to one Marin Kahihu Muthiora who in any event has not sworn any affidavit in support of his case. Throughout the instant proceedings, the tenant has referred to the respondent as the “landlord” and it is inconceivable how he now seeks to challenge her capacity to issue the notice.

33. We have considered the submission by the tenant on the interpretation of Section 4(4) of Cap 301. Our view is that any controlled tenancy can be terminated at any time provided that a period of two months is given to the receiving party. This is the only prerequisite. The interpretation sought by the tenant would mean that no fixed term contract would be liable to termination under Section 4(2) of Cap 301, which provides as follows;2. A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

34. Section 7(1) of the said statute provides as follows: -“Where under section 4 of this Act served a notice of termination of a controlled tenancy on the tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice: -a.where, under the tenancy under which the tenant holds for the time being, the tenant has any obligations in respect of the repair and maintenance of the premises comprised in such tenancy, that the tenancy ought to be terminated in view of the state of repair of the premises, being a state resulting from the tenant’s failure to comply with the said obligations;b.that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;c.that the tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant’s use or management of the premises comprised in the tenancy;d.that the landlord has offered and is willing to provide or secure the provision of alternative accommodation for the tenant, that the terms on which the alternative accommodation is available are reasonable having regard to the terms of the tenancy and to all other relevant circumstances, and that the accommodation and the time at which it will be available are suitable for the tenant’s requirements (including the requirement to preserve goodwill) having regard to the nature and class of his retail trade or business or enterprise and to the situation and extent of, and facilities afforded by, the premises comprised in the tenancy;e.that the tenancy was created by the subletting of part only of the premises comprised in a superior tenancy of which the landlord is the owner of interest in reversion expectant on the termination of that superior tenancy, and that the aggregate of the rents reasonably obtainable on separate lettings of such premises in parts would be substantially less than the rent reasonably obtainable on a letting of such premises as a whole, and that on the termination of the tenancy the landlord requires possession of such premises as a whole for the purpose of letting or otherwise disposing of the same as a whole;f.that on the termination of the tenancy the landlord intends to demolishor reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises;g.subject as hereinafter provided, that on the termination of the tenancy the landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes, or partly for the purposes, of a business to be carried on by him therein, or at his residence.

35. The landlord’s tenancy notice dated 8th October 2024 falls within Section 7(1)(f) of the said statute. The format used is the one prescribed under Regulation 4 of the Schedule to the Act. The period given is 2 months as prescribed in the Act. It is therefore valid in law.

36. We find and hold that the termination notice fully complies with the requirements of Section 4 of Cap 301 as analyzed in the case of Manaver N Alibhai t/a Diani Boutique – vs- South Coast Fitness & Sports Centre Limited Civil Appeal No. 203 of 1994, wherein it was held as follows: -“The Act lays down clearly in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated and no term or condition in or right or service enjoyed by the tenant of any such tenancy shall be altered otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”Issue (b) Whether the tenant is entitled to the reliefs sought in the reference and application dated 5th December 2024.

37. Section 6(1) of Cap 301, Laws of Kenya, provides as follows;1. A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take effect, refer the matter to a Tribunal, whereupon such notice shall be of no effect until, and subject to, the determination of the reference by the Tribunal:Provided that a Tribunal may, for sufficient reason and on such conditions as it may think fit, permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this section.”

38. Regulation 5 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, 1966 is in the following terms: -5. Reference to the Tribunal under section 6(1) or section 12(4) of the Act shall be in Forms B and C in the Schedule to these Regulations.”

39. The tenant did not file a reference as required under the foregoing provisions of the law. The tenant’s reference herein is in the nature of a Complaint under Section 12(4) of Cap 301, Laws of Kenya which makes it incompetent for purposes of challenging the termination notice.

40. Section 10 of the said statute provides as follows; -“Where a landlord has served a notice in accordance with the requirements of section 4 of this Act, on a tenant, and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice, or to refer the matter to a Tribunal then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy, or terminate or alter the terms and conditions, thereof or the rights or services enjoyed thereunder.” (emphasis added).

41. In the case of Saheb Vs Hassanally (1981) eKLR, the Court of Appeal analyzed the foregoing legal provision and held as follows; -“In my opinion, it is clear that under the terms of section 10, if a valid notice is not referred, the landlord is entitled to possession without having to prove any of the statutory grounds relied upon in the notice.To be valid a tenancy notice must comply with the provisions of section 4, including the requirements of the use of the prescribed form, of setting out the statutory grounds for relief and of due service. The learned judge was wrong in this case to investigate the grounds relied upon in the notice, but even then, he should have given judgment for the appellant on the ground that was conceded, namely that the landlord required the occupation of the premises for the purposes of his business (section 7 (1) (g)). The learned judge was in error in not awarding possession of the premises to the appellant in accordance with section 10, without making any inquiry into the validity of the grounds relied upon.” (emphasis added)

42. It therefore follows that the tenant is not entitled to the reliefs sought in the Complaint and application dated 5th December 2024 and the same are candidates for dismissal.

43. Section 12(4) of Cap 301 provides as follows: -4. In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit.”

44. To avoid a multiplicity of suits and in line with the foregoing provisions, we shall make final orders in regard to the dispute between the two parties herein.

Issue (c) Who shall bear the costs of the suit? 45. Section 12(1)(k) of Cap 301 provides that the costs of every suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall award costs of the Complaint to the landlord being the successful party.

C. Final Orders 46. In conclusion, the following final orders commend to us; -a.The notice to terminate tenancy dated 8th October 2024 is hereby approved and the tenant’s Complaint and application dated 8th December 2024 are hereby dismissed with costs.b.The tenant shall deliver vacant possession of the suit property within the next Thirty (30) days hereof and in default shall be evicted therefrom by a Licensed Auctioneer who shall be accorded security by the OCS, Riruta Police Station.c.The landlord is awarded costs assessed at Kshs 40,000/= against the tenant.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF APRIL 2025. HON GAKUHI CHEGEPANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE A. OSODOPANEL MEMBERIn the presence of: -Washika for the landlordMs Chemutai for the tenant