Apondi v Gavara [2025] KEBPRT 429 (KLR)

Apondi v Gavara (Tribunal Case E036 of 2025) [2025] KEBPRT 429 (KLR) (24 October 2025) (Judgment) Neutral citation: [2025] KEBPRT 429 (KLR) Republic of Kenya In the Business Premises Rent Tribunal Tribunal Case E036 of 2025 J Osodo, Chair & Gakuhi Chege, Member October 24, 2025 Between Jackline Apondi Tenant and Asa Mugaro Gavara Landlord Judgment A. Dispute Background 1.This matter arises from a notice to terminate tenancy dated 30th January 2025 issued by the Landlord, seeking termination of a controlled tenancy under Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 of the Laws of Kenya. 2.The grounds for termination are that the Landlord intends to use the business premises for her own use, and the Landlord seeks payment of rent arrears and vacation of the suit premises by the Tenant. 3.The Tenant filed a reference opposing the termination under section 6 of Cap 301 Laws of Kenya dated 26th February 2025, alleging no rent arrears, unlawful lockout in March 2025 with police assistance, and seeking damages for business interruption and costs. 4.The landlord filed an affidavit dated 20th March 2025 and an undated affidavit in which he deposes that he issued the tenant with a notice to vacate the premises in accordance with the law, attaching a copy of the notice as annexure “AMK”. He explains that she intends to use the premises

for his own wholesale business. 5.The landlord further depones that the tenant has failed to maintain the premises, leading to disconnection of electricity by Kenya Power and Lighting Company over five months ago, and has not made any effort to pay for reconnection. He adds that the premises are located near (100 meters) Mudungu Primary and Secondary Schools, and that members of the community have persistently complained about the bar business being run by the tenant, as it is near a learning institution. 6.The landlord further asserts that the tenant has been defaulting in rent payment, often paying late, and even after receiving notice to terminate the tenancy, she has failed to pay rent for the month of March 2025. 7.The landlord also deposes that the government has directed the tenant’s bar to be closed due to its proximity to the school. He claims that the bar was locked by government officers, and that the tenant also runs an illegal alcohol business from her residential room behind the bar. He adds that the tenant’s activities have caused interference with other tenants. 8.The landlord contends that because the tenant uses part of the premises for residential purposes, the matter does not fall under the tribunal’s jurisdiction. He further states that the premises, which have since been locked, are going to waste, and expresses his intention to take them up for his own

wholesale business. 9.The matter proceeded to hearing on 22nd July 2025 and 19th August 2025, with cross-examination of witnesses, who included the tenant and the landlord. 10.At the hearing, the tenant stated that she was issued with the said notice to terminate tenancy dated 30th January 2025 which was served on 6th February 2025 and she prayed for time to look for alternative premises one year from January 2025 as 2 of her children are candidates. She also stated that she has no rent arrears. 11.The landlord on the other hand, at the hearing stated that she was not involved in the closure of the suit premises (bar) and that the tenant has paid rent up to July 2025 for the bar and the place of residence. 12.After the hearing, parties were directed to file written submissions and both parties complied with the landlord filing his dated 21st August 2025 and the tenant filing hers dated 18th September 2025. We shall consider the submissions together with all the documents filed as we deal with the issues for determination. B. Issues for determination and analysis 10.The following issues arise for determination;a.Whether the tenant’s reference dated 26th February 2025 is valid.b.Who shall bear the costs of the reference? Issue (a) Whether the tenant’s reference dated 26th February 2025 is valid 11.The tenant’s reference arises from a notice to terminate tenancy issued under

Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya. The tenant contests the termination, alleging unlawful lockout, absence of rent arrears and business interruption. 12.The landlord contends that the premises are comprised of two distinct parts: one being a bar business situated about 100 metres from Mudungu Primary School, and another being the tenant’s residential room situated behind the bar. He asserts that the business was closed by government officials due to licensing and zoning restrictions, and that he now wishes to use the bar portion of the premises for his own wholesale business. 13.The tribunal has carefully examined the affidavits, submissions and testimony tendered by both parties. It is clear from the record that the bar portion of the premises was indeed being used for commercial purposes, while the residential portion served as the tenant’s dwelling. 14.Section 2 of Cap 301 defines “premises” to mean premises that are occupied wholly or mainly for business purposes. The Act expressly excludes premises used wholly or mainly as a dwelling. Therefore, this tribunal only has jurisdiction over the bar portion of the premises, and not over the residential room situated behind the bar. 15.Accordingly, the tribunal finds and holds that the residential portion of the premises is outside the jurisdiction of

this tribunal and shall not be the subject of further determination herein. 16.On the issue of the bar premises, the landlord’s notice dated 30th January 2025 was served in compliance with Section 4(2) of Cap 301. It specified the grounds of termination, namely, the landlord’s intention to use the premises for his own business and the existence of rent arrears. 17.The tenant did not demonstrate that the notice was defective or served outside the statutory period. The landlord’s intention to occupy the premises for his own business falls squarely within the grounds permitted under Section 7(g) of the Act, which provides:“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 as his residence.” 18.The tribunal has also considered the fact that the bar business was closed by government officials with assistance of Mudete Police Station on account of its proximity to a primary school and licensing irregularities. The tenant herself admitted that the closure was by government officers. There is therefore no evidence of unlawful eviction or lockout by the landlord. 19.The tenant’s argument that she should continue to occupy the premises because she has

children in school cannot override the landlord’s statutory right to recover possession for his own use. The tribunal finds that such personal circumstances, though sympathetic, are not grounds recognized under Cap 301 to defeat a valid notice. 20.The landlord has further stated that there are other alternative business premises within the locality that the tenant could relocate to, and that the bar premises have remained unused since the closure, thereby going to waste. 21.The tribunal is guided by the Court of Appeal decision in Manaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Ltd, Civil Appeal No. 203 of 1994, where it was held that:“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 otherwise than in accordance with the specified provisions of the Act. These provisions include the giving of a notice in the prescribed form specifying the grounds upon which termination is sought.” 22.Applying the above authority, this tribunal finds that the landlord’s notice meets the requirements of the Act and that the termination was procedurally and substantively lawful. 23.The Tribunal notes, however, that the landlord did not produce tangible proof of his intention to establish the alleged general

shop or wholesale business at the suit premises. While this omission weakens the landlord’s assertion of intended personal use, the Tribunal cannot overlook the undisputed fact that the bar business was lawfully closed by government officials for licensing and zoning reasons. The continued occupation of the premises by the tenant would therefore serve no lawful or productive purpose. In the circumstances, the Tribunal finds it just and equitable that the tenant vacates the premises, which remain closed and unusable for her business. 24.The tenant’s continued resistance to vacate the premises after lawful notice, and after the business has been closed by licensing authorities, amounts to an attempt to frustrate the landlord’s legitimate right of re-entry for own use. 25.Consequently, the tenant’s reference dated 26th February 2025 lacks merit and must fail. Issue (b) Who shall bear the costs of the reference? 22.As regards costs, the same are in the tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. Costs of the reference shall be awarded to the landlord, being the successful party. C. Final Orders 26.In conclusion, the tribunal hereby makes the following orders:a.The residential portion of the premises is excluded from the jurisdiction of this tribunal and shall not form part of this

determination.b.The tenant’s reference dated 26th February 2025 is hereby dismissed.c.The landlord’s notice to terminate tenancy dated 30th January 2025 in respect of the bar premises is found to be valid and lawfuld.The landlord shall break into and take vacant possession of the bar premises within thirty (30) days from the date of this judgment, with the O.C.S Mudete Police Station according necessary security during the process.e.The tenant is at liberty to remove any personal belongings remaining in the closed bar within the same period.f.Costs of the reference are awarded to the landlord.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY of OCTOBER 2025.HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE - (PANEL MEMBER)Delivered in the absence of parties