[2025] KEBPRT 162 (KLR)

George v Wanjiru (Tribunal Case E1112 of 2024) [2025] KEBPRT 162 (KLR) (7 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 162 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1112 of 2024

J Osodo, Chair & Gakuhi Chege, Member

March 7, 2025

Between

Judy Anyango George

Applicant

and

Frazia Wanjiru

Respondent

Ruling

A. Dispute Background 1. The tenant/applicant moved this Tribunal vide a Reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 dated 18th October 2024 with a complaint that the landlord has issued a defective and unlawful notice to vacate the suit premises on or before 31st October 2024.

2. The tenant/applicant filed a notice of motion under a certificate of urgency dated 12th October 2024 in which she sought for the following orders; -i.That the application be certified urgentii.That a temporary injunction be issued restraining the respondent from evicting or interfering in any way with the applicant’s peaceful occupation and use of the premises located at Gikomba market, Mumbai building basement shop 050 now 051 (under the new management)iii.That the respondent be compelled to furnish a valid reason in accordance with the provisions of Cap 301 laws of Kenya, for issuing the notice to vacate.iv.That the respondent accepts the other half of October rent being the sum of KES. 15,000 from the applicant.v.That any other order that the tribunal may deem necessary.vi.That the costs of the application be provided for.

3. The application is supported by an affidavit of even date in which the tenant deposes as follows; -i.That the applicant has been a lawful tenant of the Respondent, Frazia Wanjiru, in Gikomba market, renting shop 050 (now 051) at KES 30,000 per month.ii.That the tenant/applicant has built a thriving business in the premises, which is her sole source of income.iii.That in October, she paid her usual rent of KES 30,000, but the respondent refunded KES 15,000 along with a message demanding that she vacate the premises by the end of the month without lawful cause. A copy of the WhatsApp message and the refund of KES. 15,000 are annexed.iv.That relocating on such short notice would negatively impact her business and loyal customer base.

4. The application is opposed vide a replying affidavit dated 15th November 2024 in which the landlady deposes as follows; -i.That the applicant is a tenant at the suit premises paying a monthly rent of KES. 30,000 and that there is no written tenancy agreement.ii.That the landlady reversed the rent of KES. 15,000 to the applicant because the landlady has paid rent for 2 months (October and November 2024) to the new management of the suit premises who warned her not to sub-let the suit premises to a 3rd Party.iii.That the refunded amount of KES. 15,000 was to enable the tenant to relocate and pay rent for another business premises.iv.That the landlady served the tenant with a termination notice to give vacant possession of the suit premises by 31st October 2024 since she has sublet the business premises to another tenant one (Ms. Nancy Njeri Gatongo) without the landlord’s express consent which is contrary to the rules and regulation of the new management. A copy of the letter from the management is attached.v.That the said notice was not served as per Cap 301 Laws of Kenya and that the landlady learnt of this after visiting the tribunal’s offices. That the landlady apologizes to the court and to the tenant for issuing the illegal notice which she withdraws and has served the tenant with a legal termination notice in the prescribed form.vi.That the landlady has not harassed the tenant in any wayvii.That the court allows the landlady to issue the tenant with a legal termination notice for reasons that the landlady wishes to use the business premises for her own personal use for not less than 1 year.

5. The tenant/applicant filed a further affidavit dated 6th January 2025 in which she deposes as follows; -i.That for the past 1 year and a few months, the applicant has been the respondent’s tenant and evidence of Mpesa payments as proof of rent payment has been presented.ii.That the respondent has been receiving rent as paid and has only refunded KES. 15,000 and since then, has been retaining the full rent while the matter has been before the tribunal.iii.That the applicant has never sublet the premises to any party, however the mentioned party is the applicant’s friend who only took up space in the shop but the applicant pays rent to the landlady.

6. At a court hearing on 18th December 2024, the tribunal ordered that the application be canvassed by way of written submissions.

7. At a court mention on 27th January 2025, the counsel for the tenant stated that she had filed and served their written submissions and had also received the respondent’s written submissions. Upon checking the online portal, only the tenant’s submission’s dated 8th January 2025 have been filed. We shall consider this submission while dealing with the issues for determination.

B. Issues for determination. 8. The following are the issues for determination; -a.Whether the tenant is entitled to the orders sought in the application dated 12th October 2024. b.Who shall bear the costs of the application?

Issue (a) Whether the tenant is entitled to the orders sought in the application dated 12th October 2024. 9. The tenant/applicant approached this tribunal seeking protection from illegal eviction from the suit premises and that the court orders that the landlady accepts the other half of October rent being KES. 15,000.

10. The tenant in her affidavits as well as submissions states that on or about the beginning of October 2024 as it was the applicant’s custom to pay her rent, she received a reversal of KES. 15,000 which was half of the rent payable to the respondent and a text message that stated that the applicant was to vacate the premises by end of October 2024

11. The landlady in her replying affidavit admits that the said notice was not in adherence to Cap 301 laws of Kenya and withdrew the said notice. The landlady goes ahead to state that she served the tenant with a legal termination notice in the prescribed form.

12. We note that the initial illegal notice to terminate tenancy formed the basis of the application herein and that the subsequent notice to terminate tenancy dated 31st October 2024 although being in the prescribed form according to Cap 301 Laws of Kenya, was issued irregularly during the pendency of this suit.

13. Following the finding above, we also note that the subsequent notice to terminate tenancy was issued without the permission of the tribunal.

14. As such, issuance of the subsequent notice of termination dated 31st October 2024 was an exercise in futility, the same was purporting to correct what they failed to do in the first place.

15. Following the analysis above, we find that the tenant/applicant is entitled to the prayers sought in his application dated 12th October 2024 and we shall order that the said application be allowed having found that the initial notice to terminate tenancy was issued contrary to provisions of section 4 of Cap 301 laws of Kenya.

Issue (b) Who shall bear the costs of the application? 16. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of any suit before this tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall award costs to the tenant/applicant

C. Orders 17. In conclusion, the following final orders commend to us; -a.The tenant’s application dated 12th October 2024 is allowed.b.The respondent is at liberty to issue the tenant a proper notice of termination of tenancy in the prescribed form under Section 4(2) of Cap 301, Laws of Kenya.c.Costs of KES. 30,000 to the tenant/applicant to be offset against the rent account.d.The reference dated 18th October 2024 is settled in termsIt is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY of MARCH 2025. HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)HON GAKUHI CHEGE - (PANEL MEMBER)Ruling delivered in the absence of the parties