[2025] KEBPRT 156 (KLR)

Kariuki & 2 others v Runo (Tribunal Case E164 of 2024) [2025] KEBPRT 156 (KLR) (Civ) (14 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 156 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E164 of 2024

J Osodo, Chair & Gakuhi Chege, Member

March 14, 2025

Between

Jacinta Gathoni Kariuki

1st Landlord

Grace Wacice Waweru

2nd Landlord

Mary Wambui

3rd Landlord

and

Emmah Wairimu Runo

Tenant

Ruling

A. Dispute background 1. The landlords/applicants moved this Tribunal vide a Reference dated 30th October 2024 under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 with a complaint that the tenant/respondent has refused to vacate the suit premises and deliver vacant possession despite being served with a notice to terminate tenancy.

2. The landlords/applicants filed a notice of motion under a certificate of urgency dated 30th October 2024 in which they sought for the following orders; -i.That the application be certified urgent.ii.That the tenant be ordered to deliver vacant possession of the suit premises which forms part of Nyandarua Building situate on L.R No. Nakuru Municipality Block 5/98 and in default, the landlords be at liberty to evict her through a licensed auctioneer.iii.That the OCS Nakuru Police Station do provide security and ensure compliance.iv.That costs be in the cause.

3. The application is supported vide an affidavit of even date in which the applicants/landlords depose as follows; -i.That the applicant is a tenant at the suit premises.ii.That the tenant was issued with a notice to terminate tenancy on 30th May 2024 which was expressed to take effect on 1st August 2024. A copy of the said notice together with the affidavit of service are annexed as “JG-2 a &b”.iii.That the tenant did not file any reference to oppose the said notice and has never delivered vacant possession of the suit premises.iv.That the tenant has failed to pay monthly rent of KES. 40,000 which arrears have accrued since 1st November 2023 despite being ordered to do so by the Tribunal in Nakuru BPRT Case No. E065 of 2023. A copy of the judgement is annexed as “JG-3”.v.That the applicants intend to do renovations to the building.vi.That the applicants wish to utilize the entire property and with the current state of the property, they have suffered inconveniences as potential tenants have declined to take up the other spaces owing to the current structural design of the building.vii.That the applicants are in the process of applying to the Nakuru County Government for approvals and the renovation works are slated to commence soon thereafter. A copy of the proposed re-development plans are annexed as “JG-4”.

4. The application is opposed vide a replying affidavit dated 17th December 2024 in which the tenant/respondent deposes as follows: -i.That the tenant has been in and out of court since some time in 2018 about this tenancy as different respondents have always shown up to harass her despite the court determining the matter on merit.ii.That the registered proprietors of the suit property title No. Nakuru Municipality Block 5/98 are; Kariuki Kuria, Gichuki Gichane, Kioria Hinga and Waweru Mugo. A certificate of lease for the suit property is annexed as “ER1”.iii.That the tenant used to remit rent directly to the above proprietors through their bank account, however issues arose when their children, grandchildren and/or wives started interfering with the tenant.iv.That the said landlords vide a special power of attorney dated 10th September 2017 appointed attorneys namely; Simon Waweru, Jacinta Gathoni Kariuki & Samuel Kibunja Gichuki, to act on their behalf in relation to the suit property. A copy of the special power attorney is annexed as “ER2”.v.That the tenant has no rent arrears as noted by Hon. Muma in BPRT E065 of 2023 and that since June 2023, the tenant has been depositing rent directly into the Tribunal. A copy of the court order directing that rent be deposited at the Tribunal together with court receipts is annexed as “ER3”.vi.That the appointed attorneys have never served any court order to enable the tenant to remit the rent to their bank account.vii.That the tenant continues to undergo harassment at the suit premises and has reported to the police. A copy of the OB reference is annexed as “ER5”.viii.That the alleged landladies are strangers to the tenant.ix.That on Monday 16th November 2024, the shop was broken into, vandalized and goods were stolen. Copies of photos are annexed as “ER6”.

5. The tenant also filed a notice of preliminary objection dated 17th December 2024 on the grounds that the application is Res Judicata for reasons that similar issues (being an attempt to illegally evict the tenant) touching on the same subject matter and the same parties; BPRT Case No. 7 of 2018 and BPRT Case No. E065 of 2023 was dealt with.

6. On 19th December, 2024, this Tribunal directed that the application be disposed of by way of written submissions and the landlords/applicants were granted leave to file a further affidavit if need be.

7. The applicants filed a further affidavit dated 31st January 2025 in which they depose as follows; -i.That it is true that the registered proprietors of the suit property are; Kariuki Kuria, Gichuki Gichane, Kioria Hinga and Waweru Mugo.ii.That the applicant would wish to make the following clarification;a.Kariuki Kuria, Gichuki Gichane, Kioria Hinga are all deceased.b.That Jacinta Gathoni Kariuki (one of the applicants) is the daughter of Kariuki Kuria (deceased) and is appointed by her family, including the administrators of her late father’s property to handle matters related to Nakuru property. A copy of the Kenya Gazette showing the administrators of the estate and the resolutions made by the family members including the administrators are annexed as “JG-5a,b and c”.c.That the other applicant; Grace Wacice Waweru is the legal guardian of Waweru Mugo, presently a mental patient.d.That the other applicant; Mary Wambui is the widow and administrator of the Estate of Gichuki Gichane (Deceased). Annexed as “JG-6a&b” are copies of grant of letters of Administration and Certificate of confirmation of Grant.e.That as for Kioria Hinga (Deceased), his share in the property was purchased by the late Kariuki Kuria and Waweru Mugo and there has never been any claim from this estate since this fact is well within the knowledge of every member of the 4 families.iii.That on the issue of payment of rent, the Tribunal in Nakuru BPRT Case No. E065 of 2023 had directed the tenant to be paying monthly rent to a specific account jointly operated by representatives of the aforesaid (3) families. That the Tribunal reaffirmed the same orders in its final ruling that was delivered on 22nd September 2023. iv.That to further prove that the tenant was all along aware of the Tribunal’s order directing her to pay the rent through the supplied account, she paid rent in the month of October 2023 through the said account in compliance with the Tribunal’s orders but stopped making further subsequent payments.v.That the matters raised in Nakuru BPRT Case No. E065 of 2023 and Nakuru BPRT No.7 of 2018 are not similar to the issues raised in the instant application.vi.That the tenant cannot allude that the applicants are strangers to her yet she sued them in Nakuru Bprt Case No. E065 of 2023. She has also exhibited a Power of Attorney where the applicants are named as attorneys of the then surviving proprietors of the suit property.

8. The landlords/applicants filed their submissions dated 31st January 2025 and the tenant filed her submissions to the Notice of preliminary objection dated 18th February 2025. We shall consider both submissions as we deal with the issues for determination.

9. The Tribunal notes that there were no directions issued with regard to disposal of the notice of preliminary objection dated 17th December 2024. We shall deal with the said notice first and rely on all the documents filed in this matter.

B. Issues for determination 10. The following issues arise for determination; -a.Whether the issues raised in notice of preliminary objection dated 17th December 2024 are merited.b.Whether the landlords are entitled to the orders sought in the application dated 30th October 2024. c.Who shall bear the costs of the application?

Issue (a) Whether the issues raised in notice of preliminary objection dated 17th December 2024 are merited. 11. The tenant/respondent has raised a Preliminary Objection (PO) on the ground that the application is res judicata, arguing that similar issues concerning the tenancy, eviction, and subject matter were previously dealt with in BPRT Case No. 7 of 2018 and BPRT Case No. E065 of 2023.

12. The doctrine of res judicata, as provided under Section 7 of the Civil Procedure Act, bars courts from adjudicating matters that have already been determined by a competent court between the same parties over the same subject matter.

13. For res judicata to apply, the following elements must be satisfied: There must have been a former suit or application involving the same parties;

The former suit or application must have been heard and finally determined by a competent court; and

The issue raised in the current suit must be directly and substantially the same as the one determined in the earlier suit.

14. Upon perusal of the records, BPRT Case No. E065 of 2023 primarily dealt with rent arrears and the mode of payment, while BPRT Case No. 7 of 2018 addressed tenancy disputes involving different individuals. The present application, however, seeks vacant possession due to the failure of the tenant to comply with a termination notice.

15. The Tribunal notes that even though there is a prior ruling touching on rent issues, the question of vacant possession due to intended renovations and non-compliance with a termination notice appears to be a distinct issue that was not conclusively determined in the previous cases.

16. Therefore, this Tribunal finds that the Notice of Preliminary Objection dated 17th December 2024 lacks merit and is hereby dismissed.

Issue (b) Whether the landlords are intitled to the orders sought in the application dated 30th October 2024. 14. The landlords/applicants approached this Tribunal seeking for vacant possession of the suit premises, alleging that the tenant failed to oppose the termination notice and has also defaulted in rent payment.

15. The Tribunal takes note that the landlords issued a tenancy termination notice dated 30th May 2024, which was to take effect on 1st August 2024. The tenant/respondent has not produced any evidence of filing a reference opposing the notice within the prescribed period under Section 6(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301.

16. Where a tenant fails to challenge a termination notice within the statutory period, the notice takes effect by operation of Section 10 of Cap 301, laws of kenya.

17. Furthermore, the applicants have demonstrated their intention to renovate the premises and have attached re-development plans and photographic evidence of the current damaged state of the building on which the suit premises are situate. The Tribunal finds that the landlords have a legitimate right to regain possession for renovations and to thereafter engage in new tenancy arrangements.

18. Additionally, the Tribunal takes note of the previous ruling in BPRT Case No. E065 of 2023, which directed the tenant to remit rent to a specific account. The applicants have provided evidence that the tenant has defaulted in rent payment since November 2023, despite initially complying in October 2023.

19. Given the above, the Tribunal finds that the landlords are entitled to the orders sought, and the tenant shall be ordered to vacate and deliver vacant possession of the suit premises, failing which the landlords shall be at liberty to evict her through a licensed auctioneer, with the assistance of the OCS Nakuru Police Station who shall maintain law and order during the eviction exercise.

Issue (c) Who shall bear the costs of the application? 14. 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. Since the landlords/applicants have succeeded in their application, the costs shall be borne by the tenant/respondent.

C. Orders 14. In light of the above findings, the following orders commend to us:a. The Notice of Preliminary Objection dated 17th December 2024 is hereby dismissed.b. The landlords’ application dated 30th October 2024 is hereby allowed.c. The tenant/respondent shall vacate and/or deliver vacant possession of the suit premises within 30 days from the date of this ruling and in default, the landlords/applicants shall be at liberty to evict the tenant through a licensed auctioneer, with the assistance of the OCS Nakuru Police Station.d. All the rent deposited by the tenant/respondent into the tribunal’s account shall be released to the applicants’ bank account.e. Costs of KES. 35,000 to the landlords/applicantsf. The reference dated 30th October 2024 is settled in terms.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF MARCH 2025. HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE(PANEL MEMBER)In the presence of:Cheruiyot holding brief for Mr Chebi for the landlords/applicantsNo appearance for the tenant