[2025] KEBPRT 306 (KLR)

Irungu & another v Njuguna & 2 others (Tribunal Case E1251 & E1252 of 2024 (Consolidated)) [2025] KEBPRT 306 (KLR) (Civ) (3 June 2025) (Ruling)

Neutral citation: [2025] KEBPRT 306 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E1251 & E1252 of 2024 (Consolidated)

N Wahome, Chair & Joyce Murigi, Member

June 3, 2025

Between

Stephen Mwangi Irungu

1st Applicant

Samuel Njuguna Nganga

2nd Applicant

and

Mary Wambui Njuguna

1st Respondent

Simon Macharia Njuguna

2nd Respondent

Prodap Enterprises

3rd Respondent

Ruling

1. This consolidated Ruling relates to the amended notices of motion erroneously dated 14/2/2024 by Stephen Mwangi Nganga and Samuel Njuguna Nganga. The original notices of motion were dated 2/10/2024 and the amendments thereof allowed by consent on the 3/3/2025. Pursuant to the consent, this court directed that the notice of motion be amended and served within seven [7] days.

2. The Applicants did not however comply with the directions of the court as the amended motion was only filed and served on the 10/4/2025. As also contended by the Landlord/Respondent, the Tenant/Applicant also filed their submissions well outside the timelines given by the court. We observe that the Tenants did not seek the leave of this court to lodge their said pleadings and submissions outside the court given timelines.

3. The landlady has cited the case for the Teachers Service Commission v Kenya National Union of Teachers and 2 Others [2013] eKLR to urge us to expunge the amended notices of motion and submissions from the record and therefore dismiss the Tenants respective suits.

4. We are however of the view that if an amendment to a pleading is struck out, it means that the court has decided to remove the amended part of the pleading, effectively invalidating the amendment and restoring the original text.

5. Indeed when an amended suit and in this case application is struck out, the original suit generally remains on record, this allows the plaintiff to decide how to proceed. the court’s decision to strike out the amended decision to automatically dismiss the entire case. The plaintiff is at liberty to proceed with the original suit and/or applications.

6. We are however in agreement with the counsel for the Landlord that the amended notice of motion erroneously dated 14/2/2024 cannot be sustained in this we also rely on Order 8 Rule 6 of the Civil Procedure Rules which provides that:-“where the court has made an order giving any party leave to amend, unless that party amends within the period specified within fourteen days, the order shall cease to have any effect, without prejudice to the power of the court to extend the period”.

7. We shall therefore in our determination herein consider the notices of motion dated 2/10/2024. We proceed to expunge the amended notice of motion from the record. We however note that the amendment had merely deleted the word permanent which to us may not have any effect on these proceedings.

8. On whether the Tenant’s submissions should be expunged from the record, it is our view that the Tenants have not offered any reason nor justification to file the same outside the timelines provided by this court. We however in recognition of Article 159 [1] [d] of the constitution allow the said submissions to remain on record.The Article provides that:-““Justice shall be administered without undue regard to procedural technicalities”.

9. Turning back to the notices of motion applications dated 2/10/2024, the same sought that the landlady be restrained from breaking into the demised premises, locking or restricting the Tenants access thereof, harassing the Tenant, disconnecting water or electricity and in anyway whatsoever interfering with the Tenant’s quiet possession of the demised premises located within Kirathimo building plot No. 43 Noonkopir Trading Centre pending the hearing and determination of both the applications and the references.

10. We have perused the references herein also dated 2/10/2024 and the same seek for similar prayers just like the notices of motion of the even date. In our view, a determination on the applications herein shall also have resolved all the issues in the said references and this matter shall therefore be effectively concluded by this Ruling.

11. Having perused all the parties pleadings and submissions and also the caselaws cited, we are of the view that the issues that emerge for determination are the following:-i.Whether the Tenants applications are merited.ii.Who should bear the costs of this suit.

12. On the first issue of whether the Tenants applications dated 2/10/2024 are merited, there is no dispute that the parties relationship was established and governed by the lease/Tenancy agreement dated 1/1/2024. There is no contention by the Tenants that same was entered into through fraud, coercion or undue influence. It therefore follows that the parties consciously and voluntarily committed to the same.

13. The Clause on the term of the Tenancy states that:-“Term one year commencing 1st January, 2024 to 31st December, 2024 and renewable yearly after lapse”.

14. The other important clause in the said agreement is clause “3H” which provides that:-“The handing over of the premises shall be done when the lease period expires and the parties hereto agree not to renew the lease, and/or either party has legally terminated the lease agreement in the mode set herein below”.

15. At clause 4 of the lease/Tenancy Agreement, it provides the following:-“Either party to the agreement can terminate the lease at whatever time by giving the other party at lease 30 days notice in writing provided however that the lessee may elect to pay 1 month’s rent in lieu of the said notice”.

16. A plain reading of the lease/Tenancy agreement shows that the relationship between the parties was to lapse effective 31/12/2024. Indeed the parties proceeded to provide that the same would not be renewed and that the Tenants would evacuate from the premises at least 7 days before the 31/12/2024.

17. There is no evidence whatsoever that the relationship between the parties was ever renewed. The landlady was categorical that the Tenants were still on the premises on the strength of the orders of this court. She further asserted that any payment made after the 31/12/2024 was not rent but mesne profits. There was indeed no rebuttal to this assertion.

18. Therefore in our view, the letter dated 27/9/2024 by the landlady was not a notice to vacate perse. It was issued in conformity with clause 3H and 4 of the lease/Tenancy agreement as a notice on the expected lapse of the tenancy on the 31/12/2024.

19. It is trite that courts duties in cases of contractual engagements are to interpret such contracts and enforce the parties clear intentions. In this matter, the lease/Tenancy agreement dated 1/1/2024 speaks for itself. Our duty is to enforce the same. In the case of National Bank of Kenya Ltd v Pipe plastic Samkolit [k] Ltd [2002] 2 E.A 503 [2011] EKLR the court of appeal rendered itself thus:-“A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved”.

20. Further, in the case of Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR the court of appeal held that:-“We are alive to the hallowed maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved”.

21. It then follows that the parties are bound by their contract dated 1/1/2024. The import thereof was that the Tenants would vacate their respective premises effective 31/12/2024. The purported irregular notice to terminate the Tenancies was not necessary in the circumstances of this case. We would therefore dismiss the applications dated 2/10/2024 as lacking in any merit.

22. We however note that the landlady had committed to forego the rents payable for the months of October, November and December, 2024 on condition that the Tenants abide by the lease agreement dated 1/1/2024. Having not complied with the said terms, the said rents became available to the landlady and payable by the Tenants.

23. On the question of costs, we abide the conventional wisdom of Section 12[1] [k] of Cap. 301 and Section 27 of the Civil Procedure act and award costs to the landlady.

24. In the final analysis, the orders that commend to us are the following:-i.That the references and applications all dated 2/10/2024 in BPRT case Nos 1151/2024 and 1152/2024 are dismissed.ii.That the Tenants shall vacate their respective demised premises within 10 days of the date hereof and in default be evicted at their expense with the assistance of the OCS Kitengela Police Station.iii.That the Tenants shall settle all the mesne profits in arrears before they vacate the demised premises or are evicted therefrom and in case of default, the landlady shall be at liberty to levy distress in recovery thereof at the Tenants expense.iv.The landlady is awarded costs assessed at Kshs.50,000/- to be shared equally between the Tenants.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF JUNE, 2025. HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of M/S Shamalla holding brief for Mr. Odero for the Tenants/Applicants and in the absence of the Respondents and Counsel.