[2025] KEBPRT 332 (KLR)

Lymo & another t/a Helegion Autoparts v Dock Workers Union (Tribunal Case E045 of 2024) [2025] KEBPRT 332 (KLR) (Civ) (18 June 2025) (Ruling)

Neutral citation: [2025] KEBPRT 332 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E045 of 2024

CN Mugambi, Chair

June 18, 2025

Between

George Lymo & Hellen Wakio t/a Helegion Autoparts

Tenant

and

Dock Workers Union

LandLady

Ruling

1. The Landlord’s notice to terminate or alter terms of tenancy is the one dated 11. 1.2024. The notice is premised on the ground,“That the Landlord intends to use the subject premises for a period of more than one year.”The notice further expresses itself to be effective from 1. 04. 2024.

2. The Tenant in opposing the notice has filed a Reference to the Tribunal dated 5. 2.2024.

3. When the matter came up for hearing on 18. 3.2025, Mr. Ochieng who represents the Landlord in this case told the Tribunal that the Landlord would not be calling any witness and would be relying on the pleadings as filed. The matter did not proceed on the said date as Counsel for the Tenant was engaged in the High Court. The matter was then fixed for hearing on 30. 4.2025.

4. On 30. 4.2025, the Landlord reiterated its position that it was not calling any evidence in support of its case. The Tenant opted to testify.

The Tenant’s Case 5. The Tenant, Mr. George Lymo testified on his behalf and on behalf of Ms. Hellen his business partner. He relied on his statement dated 8. 7.2024.

6. In his statement, the witness has stated that he is a Tenant on the ground floor of the suit premises which comprises of two storeys and has more than 30 shops and offices, the ground floor is reserved for shops and not offices.

7. That the Landlord operates from the first floor where there are empty offices adjacent to its offices and which offices it can occupy if indeed it needs space.

8. The Tenant has also stated that the Landlord has issued another notice which was successfully defended in BPRT Case No. E291/2023 and costs of Kshs. 23,480/= awarded to the Tenant and the issuance of the 2nd notice in this matter therefore offends Section 9(3)(b) of Cap 301 and is in bad faith.

9. The Tenant in his statement states that a one Mr. Thoya, a manager of the Landlord assaulted him in December 2023 when the Tenant had gone to pay rent while vowing to have the Tenant evicted.

10. The Tenant therefore opposed the notice to terminate is tenancy on the grounds that the Landlord is yet to pay costs for the previous suit as ordered, that the Landlord has other alternative offices in the same premises and finally that the notice was issued in bad faith.

11. Upon cross examination, the Tenant stated that he was not sure of the number of offices on the first floor and that upon receiving the notice, he did not respond to the Landlord with reasons why he did not want to vacate the premises. The Tenant further stated that he pays his rent to the bank but has not availed his banking slips to the Landlord’s representatives because they are violent.

Analysis and determination 12. The issues that arise for determination in this Reference are in my view the following;-a.Whether failure to comply with Section 4(5) of the Act is fatal to these proceedings and the Tenant’s case?b.Whether the Landlord has proved the grounds upon which the notice to terminate tenancy is brought.c.What orders ought to issue in disposing of this matter.

Issue A: Whether failure to comply with Section 4(5) of the Act is fatal to these proceedings and the Tenant’s case? 13. Section 4(5) of Cap 301 provides as follows;-“A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing within one month after the date of the receipt of the notice whether or not he agrees to comply with the notice.”

14. The particular section of the Act is silent on the consequences of the failure by the Tenant to notify the Landlord within one month that he intends NOT to comply with the said notice.However, Section 6(1) of Cap 301 proceeds to provide as follows:-“A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under Section 4(5) of the 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.”

15. A plain reading of the Section 6(1) and 4(5) above clearly demonstrates that the notification under Section 4(5) is a necessary step before a Tenant files a Reference to the Tribunal under Section 6(1). The filing of the Reference under Section 6(1) is in addition to and not independent and exclusive of the notification required under Section 4(5) of the Act, I agree with the submissions of the Landlord where he quotes the case of; the Speaker of the National Assembly v Karume [1982] KLR 21 where the court stated;-“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”

16. During the hearing, the Tenant did not produce any evidence to show that he had adhered to the provisions of Section 4(5) of the Act, Cap 301 before he filed his Reference to the Tribunal.From the proceedings, it is therefore evidence that the Tenant omitted a vital step before filing his Reference and in my reading of the Act, that was fatal to the Reference. If the requirements of Section 4(5) of Cap 301 were merely ornamental, the Act would have said so. The fact that the Section exists in clear terms, means that Parliament intended that the procedure provided therein ought to be followed.

17. I have seen attempts by the Tenant to introduce a letter dated 30. 1.2024 which sought to notify the Landlord that the Tenant would not comply with the notice dated 11. 1.2024. I think it is improper for the Tenant to seek to prove its case and to introduce new evidence by way of written submissions, long after both parties had closed their cases. It would even be more prejudicial to the Landlord who did not tender any evidence upon consideration of the pleadings already on the record and even more so, considering the fact that the Mainstay of the Landlord’s submissions is on the failure by the Tenant to issue the notification to the Landlord required under Section 4(5). The only document the Tenant sought to annex to his submissions was the notice to terminate tenancy and which was not objected to by the Landlord.

18. In the case of; Erastus Wade Opande v Kenya Revenue Authority & Another, Kisumu HCCA No. 46 of 2007 quoted in the case of; Mavula v Waweru t/a Antique Auctioneers Agencies & Another [2024] KEHC 5988 [KLR] Civil Appeal E374 of 2023, the court stated as follows;-“Submissions simply concretise and focus on each sides case with a view to win the court’s decision, that way, submissions are not evidence on which a case is decided.”In the case of; Daniel Toroitich Arap Moi v Mwangi Stephen Murithi & Another [2014] eKLR, the court further held as follows;-“Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in the submissions could not come to his aid Such a course only militates against the law and we are unable to countenance it.”

19. The letter dated 30. 1.2024 cannot therefore be a basis on which the Tribunal can find that the Tenant complied with the provisions of Section 4(5) of Cap 301.

Issue B: Whether the Landlord has proved the grounds upon which the notice to terminate tenancy is brought. 20. It is true that the Landlord did not call any evidence and sought to challenge the Reference by the Tenant on the basis of the pleadings. I have already found that the Tenant’s failure to comply with Section 4(5) of the Act Cap 301, was fatal to his Reference filed on 5. 2.2024. In these circumstances, the Reference filed by the Tenant is incompetent and for striking out. What this means is that there is no valid objection to the Landlord’s notice to terminate as a consequence of which, the provisions of Section 10 of the Act, Cap 301 kick in and the notice thereby becomes effective on the date indicated therein.Technically, where a notice to terminate tenancy takes effect under Section 10 of Cap 301, there is no requirement under the said Section that the Landlord be heard in proof of the grounds sort out under that notice.

Issue C: What orders ought to issue in disposing of this matter. 21. In disposing of this matter, I will therefore make the following findings’-a.That the Landlord’s notice to terminate tenancy is approved.b.That the tenancy between the parties herein is terminated.c.That the Tenant will render vacant possession of the premises within the next ninety (90) days from the date of this Ruling Failingwhich the Tenant will be Forcefully Evictedby the Landlord using a licensed auctioneer.d.That the Tenant will bear the costs of this Reference.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF JUNE, 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Mutisya for the Tenant and Mr. Ochieng representing the Landlord