[2025] KEBPRT 153 (KLR)

Makokha v Malonzo t/a Mbilo Investments (Tribunal Case 127 of 2021) [2025] KEBPRT 153 (KLR) (14 March 2025) (Judgment)

Neutral citation: [2025] KEBPRT 153 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 127 of 2021

Gakuhi Chege, Chair & J Osodo, Member

March 14, 2025

Between

Thomas Aquinas Washikaw Makokha

Tenant

and

Joseph Mbilo Malonzo t/a Mbilo Investments

Landlord

Judgment

A. Dispute Background 1. The tenant moved this Tribunal through a reference dated 2nd June 2021 pursuant to Section 12(4) of Cap. 301 seeking for his reinstatement into the business premises owned by the landlord known as Shop No. 2, Miritini Guest House & Restaurant, Miritini Estate. He also sought for the release of his tools of trade and the stock in good and serviceable state together with compensation for loss of business plus costs of the suit.

2. The tenant filed his witness statement dated 4th June 2022 and that of his witness one Fred Atuti Ateka dated 21st July 2022 who confirmed that on 16th May 2021, he went to the suit premises accompanied by a village elder known as Khamisi and the tenant when they were shown by one Jane where the tenant’s shop items were kept. The items included a freezer, sewing machines, briquettes, an assortment of timber, metal frames for doors and a bicycle placed outside an open space together with other items that were in the said shop at the time of closure.

3. The reference is opposed through the replying affidavit of Mary Mbilo sworn on 16th October 2022 wherein it is deposed that the tenant was served with a one month’s notice dated 15th April 2021 to vacate the suit premises. When he failed to honor the notice, he was called to the premises and his items were removed with his consent and in his presence. The tenant subsequently filed Mombasa Magistrate’s Court Mis Application No. 258 of 2021 seeking for orders of stay of sale of his goods which orders were issued but he never went for the items. According to the landlord, the tenant owed rent arrears of KES 27,000/=. The landlord claims storage charges of Kshs 68000/= for a period of 17 months from May 2021 as at October 2022.

4. On 22nd March 2024, this Tribunal issued directions that in order that it may do substantial justice in this matter, there was need for a rent inspection to be carried out at the suit premises for purposes of establishing the following; -a.Whether the tenant’s items were still held by the landlord within the suit premises and if so, an inventory and report of the current state thereof be prepared and filed in this matter.b.Whether the business premises were vacant.

5. The Order for inspection and report was made pursuant to the provisions of Section 12(1)(n) of Cap. 301 which empowers this Tribunal to enter into and inspect premises comprised in a controlled tenancy in respect of which a reference has been made to the Tribunal.

6. Consequently, we ordered the Tribunal’s Rent Inspector to visit the suit premises for purposes of establishing whether the tenant’s items were still held by the landlord within the suit premises and if so, to prepare an inventory and report of the state thereof. The inspector was also to establish whether the business premises were vacant and file the report within 30 days thereof which would assist in writing of the final Judgement herein.

7. The suit premises were visited and a report dated 24th September 2024 prepared and filed by the Tribunal’s Rent Inspector to the effect that the premises no longer existed since the whole space had been redesigned into a reception while its rear wall had been partly demolished and a space created as the entrance to the building.

8. The Rent Inspector was taken by the landlord to the parking yard and rooftop store where the tenant’s tools of trade were kept. An inventory containing 65 items was prepared showing the goods seen by the inspector which is attached to the inspection report.

9. The matter proceeded to hearing and the tenant adopted his filed witness statements dated 4th June 2022 and 25th October 2022. He stated that his business known as Aqumu Outlets which dealt with general merchandize was locked on 25th February 2021 on allegation of two months’ arrears. He stated that he cleared all the rent arrears and paid a further sum of Kshs 16,000/= being rent for April and May 2021 via Mpesa to Mary Mbilo. However, no receipt was issued to him. The Respondent insisted on the tenant vacating and his items were to be transferred to a store where they would be held for one month before being auctioned to recover the rent arrears.

10. On 25th April 2021, the tenant was served with a letter dated 15th April 2021 stating that he should vacate the suit premises. The tenant reported the matter to a village elder at Miritini Estate by the name Mzee Khamisi who tried in vain to secure a meeting with one Jane who was managing the property.

11. On 5th May 2021, the tenant noticed that several padlocks on the door of the premises had been removed and the door appeared to have been locked from inside. After reporting the matter to the same village elder, the tenant was advised to report the issue to the police. The incident was booked vide OB No. 10/9/5/2.

12. The tenant did not get assistance from the police and he was later shown his items by JANE. The items were piled in in a small room and others were placed outside the open parking space and he was required to pay up the arrears before their release.

13. The tenant states that he saw a freezer, sewing machines, briquettes, an assortment of timber, metal frames for the doors and a bicycle placed outside the open space exposed to harsh weather conditions and vandalism. Some were perishable goods and others were prone to damage due to harsh weather condition.

14. The tenant filed a Miscellaneous Application No. 258 of 2021 wherein he obtained orders restraining the landlord from disposing the items pending determination of the said suit.

15. In his further witness statement dated 25th October 2022, the tenant responds to the contents of the replying affidavit of the landlord’s witnesses namely Shadrack M. Seng’ete & Mary Mbilo. The tenant denies having been present at the time of taking of the inventory relied upon by the landlord. He denies being in rent arrears. He claims to have paid the two months’ rent but he was not issued with a receipt which amount is claimed by the landlord as arrears.

16. According to the tenant, he paid rent for the period of May to November 2020 in cash and in kind but no receipts were being issued to him and no demand for the alleged arrears had been made against him.

17. It is the tenant’s evidence that the Respondent used to take some items on credit from his shop for use at his hotel including bottled water, gas cylinders and vegetables which would be offset against rent. The records thereof are allegedly held by the Respondent as part of the items confiscated by him.

18. It is the tenant’s case that he does not owe the landlord the sum of Kshs 27,000/= demanded as rent arrears. He denies having been served with a one month’s notice to vacate the suit premises.

19. The tenant called Fred Atuti Ateka as a witness. He relied on his witness statement dated 21st July 2022. He states that on 16th May 2021, he got information that the items in the tenant's shop had been removed and put elsewhere. He therefore visited the premises accompanied by one Mzee Khamisi and the tenant and they were shown the shop items by a lady known as jane. He confirms that the items seen by him corresponded with those in the tenant’s shop at the time of closure.

20. On the other hand, the landlord’s witness one JANE MBILO relied on her replying affidavit sworn on 16th October 2022. She deposes that the tenant was not consistent in rent payment as evidenced by annexures MB-2 & 3.

21. As a result, he was given a one month’s notice to vacate the suit premises vide a letter marked annexure MB-4 dated 15th April 2021. He failed to honour the notice and was called to the premises and his items were removed with his consent and presence.

22. The tenant filed Mombasa MCCC Misc. Application No. 258 of 2021 seeking orders to stay the sale of his goods but never went for his items. According to the witness, the tenant was still in rent arrears of Kshs 27,000/=. The landlord denies being in violation of the law as the tenant has refused to pay the rent and collect his goods.

23. Although the tenant stated that Fred Atuti Ateka was his employee at the suit premises, the said witness in cross examination stated that he was not. He instead stated that he was doing business in one section of the shop.

24. In cross examination, the tenant admitted that nobody was arrested after he reported the dispute to Mikindani Police Station. The tenant also confirmed that he did not have the Mpesa statement to confirm his alleged rent payments. He did not also call the village elder one Khamisi as a witness.

25. According to the witness, the tenant’s inventory is exaggerated and false as the goods were stored away in his presence as per the inventory marked MB-5. The storage costs for 17 months had accumulated to Kshs 68,000/= as at October 2022.

26. The landlord also called one Shadrack M. Seng’ete who relied on his affidavit sworn on 16th October 2022 wherein he deposes that he was present when the items of the tenant were taken away and an inventory prepared in the latter’s presence.

27. The tenant relied on his filed submissions dated 3rd July 2023. We have also seen earlier submissions by the landlord dated 16th May 2021.

B. Issues for determination 28. The following issues arise for determination; -a.Whether the tenant is entitled to the reliefs sought in the reference.b.Who shall bear the costs of the reference?

29. As observed above, the tenant moved this Tribunal through a reference dated 2nd June 2021 pursuant to Section 12(4) of Cap. 301 seeking for his reinstatement into the business premises owned by the landlord known as Shop No. 2, Miritini Guest House & Restaurant, Miritini Estate. He also sought for the release of his tools of trade and stock in good and serviceable state together with compensation for loss of business plus costs of the suit.

30. It is not contested that the tenancy herein was controlled within the meaning and interpretation of Section 2(1) of Cap 301, Laws of Kenya which provides as follows: -“controlled tenancy” means a tenancy of a shop, hotel or catering establishment—(a)which has not been reduced into writing; or(b)which has been reduced into writing and which—(i)is for a period not exceeding five years; or(ii)contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or(iii)relates to premises of a class specified under subsection(2)of this section:Provided that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy.”

31. Sections 4(1) & (2) of the said statute provide as follows;“(1)Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act.(2)A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.” (emphasis added).

32. Regulation 5 of the Landlord and Tenant (shops, Hotels and Catering Establishments) (tribunal) (forms and Procedure) Regulations, 1966 provides as follows: -4. (1)A notice under section 4(2) of the Act by a landlord shall be in Form A in the Schedule to these Regulations.”

33. We have looked at the tenancy notice served upon the tenant and have noted that it is not in the prescribed form neither does it comply with Section 4(4) of the said statute which provides as follows: -“(4)No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein.’

34. In view of the foregoing legal provision, the one-month notice served upon the tenant by the landlord herein is ineffective, null and void for all purposes. The same was incapable of terminating the tenant’s tenancy and the subsequent eviction based on it was therefore illegal.

35. We have analyzed the evidence tendered before this Tribunal by both parties and it is clear that the removal of the tenant’s properties from the suit premises was illegal as it was not backed by a lawful court order. The said items are still held by the landlord in a store and back space within the building housing the suit premises. It therefore follows that the relationship of landlord/tenant has not been completely severed and as such, this Tribunal’s jurisdiction has not been ousted.

36. We have seen the decision in the case of Manaver N. Alibhai T/a Diani Gallery vs South Coast Holdings Ltd (2020) eKLR cited by the tenant in his submissions whose reasoning we entirely agree with.

37. We have also read this Tribunal’s decision in the case of Emmanuel Musundi vs Samuel Waweru (2021) eKLR and note that in the said case, the whereabouts of the goods taken by the landlord was unknown. In the present case, the goods are held by the landlord and therefore we shall order for their release.

38. The landlord maintains that the tenant owed him Kshs 27,000/= at the time of taking possession of the suit premises. There was no Auctioneer involved in removing the goods from the suit premises neither is the said removal purported to have been executed pursuant to the Distress for Rent Act, Cap 293, Laws of Kenya contrary to the landlord’s submissions. In the premises, the cited decisions in the cases of Peter Nthenge vs Daniel Itumo & Another Nairobi Hccc No. 1242 of 1974 & John Nthumbi Kamwithi vs Asha Akumu Juma Embu Hcca No. 7A of 2016 do not apply to the circumstances of this case.

39. We have not seen any application by the landlord for recovery of the sum of Kshs 27,000/= claimed to have been in arrears and we are therefore not persuaded that the same ought to be granted.

40. The tenant claims for his reinstatement into the suit premises and for release of his tools of trade and stock in good and serviceable condition as well as compensation for loss of business and costs of the application. The Rent Inspection report dated 24th September 2024 has a list of 65 items which are held in the landlord’s store and premises. The same will therefore be released to the tenant forthwith.

41. The inventory attached to the tenant’s list of documents dated 4th June 2022 has no supporting documents like stock records, receipts for purchase or other ownership documents which would authenticate their existence. The village elder who was said to have witnessed their removal by the name of Mzee Khamisi was not called as a witness by either party and we find the Rent Inspector’s list more reliable and authentic.

42. In regard to the tenant’s claim for reinstatement back to the suit premises, the rent inspection report shows that the tenant’s shop had been redesigned into a reception while the rear wall had been partly demolished and an entrance created leading into the kitchen, restaurant and upstairs’ rooms. The report concludes that the tenant’s premises no longer existed. It is therefore not practicable to order the tenant’s reinstatement into the suit premises.

43. In lieu of the order for reinstatement, we shall award the tenant a sum of Kshs 300,000/= being general damages for loss of tenancy in line with the powers granted to this Tribunal under Section 12(4) of Cap 301, Laws of Kenya and the decision in the case of Lena Sarange vs Robert Oyieko Angoi (2020) eKLR wherein the Superior Court held as follows: -“27. Having said that, it would not be practical to set aside the order issued on 12. 4.2019 and reinstate the Appellant in the premises as the owners of the premises have already leased the premises to the Respondent. The Appellant’s only recourse is in damages for loss of tenancy. The Appellant is also at liberty to sue the owners of the demised premises for a refund of the unutilized rent and general damages for breach of the lease agreement.28. In view of the foregoing, I find merit in the appeal and I allow it. The matter is referred back to the Tribunal for assessment of the Appellant’s damages for loss of Tenancy. The Respondent shall bear the costs of this appeal.”

44. The tenant’s claim for loss of business is in the nature of special damages which must not only be specifically pleaded but also strictly proved in line with the Court of Appeal decision in the case of Hahn v Singh [1985] eKLR, wherein it was held as follows: -“Now the next two grounds of the memorandum concern special damages which must be not only claimed specially but proved strictly for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves. This has been adumbrated by Bowen, LJ in Ratcliffee v Evans (1892), 2 QB 524, 532, 533, Lord Macnaghten in Stroms Bruks Aktic Bolag v John & Peter Hutchinson, [1905] AC 515, 525, 526, Lutta, JA in Kampala City Council v Nakaye, [1972] EA 446, 447 and Chesoni, J, in Ouma v Nairobi City Council, [1976] KLR 297,” (emphasis added).

45. In absence of compliance with the foregoing legal requirement, the claim for loss of business must fail.

Issue (c) Who shall bear the costs of the reference? 46. 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. We shall award costs of the reference to the tenant.

C. Orders 47. In view of the above analysis, the final orders which commend to us are;a.The tenant’s reference dated 2nd June 2021 is allowed in the following terms: -i.The removal of the tenant’s properties from the suit premises was illegal as it was not backed by a lawful court order.ii.The tenant’s tools of trade and stock as per the inventory attached to this Tribunal’s Rent Inspector’s report dated 24th September 2024 shall be forthwith be released to him in the presence of the OCS Miritini Police Station who shall take an inventory and file the same in this matter for the Tribunal’s record.iii.The tenant is awarded Kshs 300,000/= as general damages for loss of tenancy against the landlord.iv.The tenant is awarded Kshs 100,000/= as costs of the reference against the landlord.b.The claim for the tenant’s reinstatement back into the suit premises is declined.It is so ordered.

JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF MARCH 2025. HON. GAKUHI CHEGE - (PANEL CHAIRPERSON)HON. JOYCE AKINYI OSODO - (MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of: -Jumbale for the tenantNo appearance by the landlord