Makori v Kamwendia [2025] KEBPRT 399 (KLR)

Makori v Kamwendia (Tribunal Case E382 of 2025) [2025] KEBPRT 399 (KLR) (3 September 2025) (Ruling) Neutral citation: [2025] KEBPRT 399 (KLR) Republic of Kenya In the Business Premises Rent Tribunal Tribunal Case E382 of 2025 J Osodo, Chair & Gakuhi Chege, Member September 3, 2025 Between Ruth Makori Tenant and Justin Kamwendia Landlord Ruling A. Dispute Background 1.This dispute was commenced by a Reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 dated 10th April 2025 with a complaint that the landlord/respondent unlawfully locked the premises and chased away the applicant’s employee, thereby denying the tenant access to the suit premises and the ability to conduct her business. 2.The tenant filed a Notice of Motion under a certificate of urgency dated 10th April 2025 in which she sought for the following orders:i.That the application be certified as urgent.ii.That the Tribunal be pleased to order the Respondent to unlock the premises known as Stall No. 1 along Kentainers, Skyline road and allow the tenant access thereto pending hearing and determination of the application and in default, the Tenant/applicant to cause it to be unlocked under the supervision of OCS Embakasi Police station.iii.That the Respondent be ordered to reopen the suit premises, reconnect the electricity supply to the premises and in default,

the tenant/applicant be allowed to cause the same to be reconnected at the cost of the Respondent.iv.That the Respondent be restrained through the Honourable Tribunal’s order from evicting, locking and/or in anyway whatsoever from interfering with the Tenant/applicant’s use and possession of the premises pending hearing and determination of the application and the reference.v.That the tenant/applicant be awarded exemplary compensation to the tenant for the loss that the tenant has incurred for the months of June 2024 to April 2025 at the rate of kes. 10,000/= per month till payment in full.vi.That costs of the application be provided for. 3.The application is supported by an affidavit of even date in which the tenant deposes that in July 2023 she leased Stall No. 1 along Kentainers Skyline Road from the landlord, at a monthly rent of kes. 10,000, where she operated an eatery and carried out landlord-directed repairs. 4.She avers that in June 2024, the landlord unjustifiably locked the premises and chased away her employee. Despite repeated attempts to resolve the matter amicably, including the involvement of her lawyer and the police, the landlord has failed to reopen the premises and has instead issued repeated demands without cooperation. She believes the landlord’s promises to reopen have been insincere and deliberately frustrating. 5.That as a result, the business has

remained closed for about 10 months, causing her losses estimated at kes. 100,000. She further states that the landlord’s actions have subjected her to financial loss, mental torture, and ongoing threats of eviction without following due legal process. 6.The Respondent filed a Preliminary Objection dated 21st April 2025, arguing that there was no landlord/tenant relationship at the time of filing and that the Tribunal therefore lacked jurisdiction. 7.At the court hearing on 22nd April 2025, the court directed that an inspection be conducted by the tribunal to establish whether the tenant’s properties were still held in the suit premises. 8.The said inspection was conducted in the presence of both parties and a report filed which is dated 29th April 2025. 9.The site inspection report is summarised as follows; -i.That the outer veranda door had been locked with the landlord’s padlock after removing that of the tenant. The interior door, previously secured by the tenant, had also been fitted with the landlord’s padlock. The landlord was requested to unlock both doors, which he complied with.ii.That on entering the premises, the tenant pointed out that she had undertaken various renovations, including painting, tiling, fitting shelves and cabinets, and installation of a service counter. She had also extended the premises by constructing two additional rooms for staff quarters. An

electricity power change-over switch was also installed.iii.Both the tenant and the landlord confirmed that the said renovations and extensions had been carried out with the landlord’s approval and knowledge.iv.That the following belongings of the tenant were found on the premises: A service counter; A table; Wooden display shelves; A mattress in one of the extended rooms; One 10,000-litre water tank and a small blue water drum; The electricity change-over switch belonging to the tenant. v.The Tribunal’s site inspector concluded that the tenant’s belongings were still inside the premises, thereby confirming the existence of an ongoing landlord–tenant relationship.vi.It was further concluded that the tenant, having made renovations with the landlord’s approval, is entitled either to continue enjoying the renovated premises or to receive compensation for the said improvements. 10.The Respondent filed a replying affidavit and further replying affidavit both dated 17th June 2025 in which he deposes that in July 2023, he orally leased Stall No. 1 along Kentainers Skyline Road, Embakasi, to the Applicant at a monthly rent of kes. 15,000/=. He avers that although he initially granted the tenant quiet possession of the premises, by the end of 2023, the tenant began experiencing problems with rent payment. Despite several attempts to meet the tenant and resolve the matter, only partial

rent payments were made through M-Pesa, which he terms irregular and insufficient. He describes the tenant as unreliable and hostile whenever issues of rent arrears were raised. 11.The Respondent further depones that due to persistent default, he sought the intervention of the area chief to convene reconciliation meetings, but the Applicant allegedly failed to cooperate. Consequently, in October 2024, he repossessed the premises after rent arrears had accrued to kes. 210,000/=. He asserts that at the time of repossession, the premises were vacant, and no business was operational. He denies the Applicant’s claim of incurring kes. 100,000/= in losses and insists that photographs attached to the inspection report demonstrate that no eatery was ever operational. He also disputes the Applicant’s allegation of repairs and renovations, arguing that he never gave consent and that the Applicant is misleading the Tribunal by exaggerating the extent of works allegedly done. 12.In his Further Replying Affidavit, the Respondent expressly opposes the Site Inspection Report dated 29th April 2025, save for the six photographs attached. He contends that the report is misleading and creates an erroneous impression that the tenant’s belongings were still in the premises, whereas he had lawfully repossessed the property in October 2024. He maintains that the Site Inspector went beyond the

Tribunal’s terms of reference by opining on matters such as padlocks being replaced and by recommending compensation for renovations, which he argues was outside the inspector’s mandate. 13.The Respondent further relies on Section 7(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, to justify his repossession on the ground of non-payment of rent. He also invokes Section 35 of the Evidence Act (Cap 80), contending that the Site Inspection Report does not meet the threshold for admissibility as it is based on hearsay and not contemporaneous facts. He therefore urges the Tribunal to disregard the inspection report (save for the photographs), reject the Applicant’s claim of loss and renovations, and dismiss the reference with costs, insisting that the Applicant’s pleadings are misleading and fictitious. 14.Parties were directed to file their written submissions and both parties complied with the tenant filing hers dated 28th April 2025 and the landlord filing his dated 17th June 2025. We shall consider both submissions as we deal with the issues for determination; - B. Issues For Determination And Analysis. 15.The following issues arise for determination; -a.Whether there exists a landlord/tenant relationship between the partiesb.Whether the Tenant is entitled to the orders sought in the application dated 10th April 2025.c.Who shall bear costs

of the application? Issue (a) Whether there exists a landlord/tenant relationship between the parties 16.The respondent filed a Notice of Preliminary Objection dated 21st April 2025, contending that there was no landlord–tenant relationship at the time of filing and that the Tribunal therefore lacked jurisdiction. 17.We have carefully considered the affidavits filed, the submissions of the parties, and the inspection report dated 29th April 2025. The report confirmed that the Applicant’s items were still inside the suit premises and that the Respondent had, granted permission for renovations. While it is true that no active business was being conducted at the time of inspection, the presence of the Applicant’s goods in situ is material in establishing that the tenancy relationship had not been wholly extinguished. 18.The Tribunal in Eben Hardware Hepbjay Ltd v Mugo & another (BPRT Case E063 of 2023) [2023] KEBPRT 461 held that jurisdiction under Cap 301 is dependent on the existence of an active landlord–tenant relationship. The Tribunal stated as follows:“Jurisdiction of this Tribunal is pegged on the existence of a landlord–tenant relationship as defined under Cap 301. Where there is no active business in occupation, the Tribunal cannot intervene except in respect of ancillary matters. However, so long as the tenant’s goods remain in the premises, the tenancy cannot be said

to have been lawfully determined, as possession is a key indicator of occupation.” 19.Guided by this decision, it is clear that even where no active trade is being carried on, the continued presence of the tenant’s items signifies subsisting occupation, thereby sustaining the Tribunal’s jurisdiction under Cap 301. 20.Similarly, in Omondi v Kassam [2024] KEHC 10703, the High Court affirmed that the tenant’s foremost obligation is to pay rent promptly but also underscored that a landlord cannot unilaterally terminate tenancy without complying with the procedure set out under Cap 301. The unlawful act of locking out a tenant, particularly where their items remain within the premises, does not dissolve the jurisdiction of the Tribunal. 21.The principle was also emphasized in Samuel Kipkori Ngeno & Another v Local Authorities Pension Trust (Registered Trustees) [2013] eKLR, where the Court observed that as long as the tenant remains in occupation, actual or constructive, the provisions of Cap 301 are triggered and the Tribunal retains jurisdiction to inquire into disputes arising therefrom. 22.Guided by the above authorities and the site inspection report, we find that the Applicant remained a tenant within the meaning of Section 2 of Cap 301 by virtue of her goods being present in the demised premises. Consequently, the Tribunal has jurisdiction to entertain and determine the

present dispute. 23.The notice of Preliminary Objection dated 21st April 2025 is therefore dismissed. Issue (b) Whether the Tenant is entitled to the orders sought in the application dated 10th April 2025. 24.The tenant filed the application herein seeking orders that the respondent unlocks the premises known as Stall No. 1 along Kentainers Skyline Road, Embakasi, and allow her access thereto, with the OCS Embakasi Police Station directed to supervise compliance. The applicant also prays that the landlord be ordered to reopen the premises and reconnect electricity supply, and in default, be compelled to bear the costs of reconnection. Additionally, she seeks restraining orders to prevent the respondent from evicting, locking, or in any way interfering with her quiet use and possession of the premises and exemplary compensation for business losses allegedly incurred from June 2024 to April 2025 at the rate of kes. 10,000 per month until payment in full. 25.The Respondent in his Replying Affidavit dated 17th June 2025 challenges the admissibility of the inspection report, invoking Section 80 of the Evidence Act. He argues that the report does not meet the standards of admissible evidence and should therefore be disregarded. 26.We note this objection. However, it is well settled that this Tribunal, being a specialized body established under Cap 301, is not bound by strict rules of

evidence applicable in ordinary civil courts. Section 12(1)(i) of Cap 301 empowers the Tribunal to “summon and examine witnesses on oath, and to call for the production of books and documents” in the course of its proceedings. Over time, inspection reports prepared at the Tribunal’s direction have consistently been treated as reliable tools in fact-finding. 27.In Eben Hardware Hepbjay Ltd v Mugo & another (BPRT E063 of 2023) [2023] KEBPRT 461, the Tribunal relied on an inspection report to determine whether a tenant’s goods remained on the premises. The High Court in Republic v Business Premises Rent Tribunal ex parte Chodoh Construction Ltd [2014] eKLR further affirmed that Tribunals may adopt flexible procedures, including reliance on inspection reports, so long as the parties are given an opportunity to contest or comment on them. 28.In this case, the inspection was carried out on 29th April 2025 pursuant to a Tribunal order made in the presence of both parties. Both the Applicant and Respondent were aware of the process, and the report was duly filed on record. That objection does not, in our view, displace the probative value of the report. 29.We therefore affirm that the inspection report is properly on record and forms part of the evidence upon which this Tribunal can rely in arriving at its determination. 30.Guided by the inspection findings, coupled with the affidavits

and submissions on record, we hold that the Tenant has succeeded in proving that she was illegally evicted from the suit premises and therefore is entitled to reinstatement into the premises, restoration of electricity, and protection from unlawful interference, but not to the prayer for monthly compensation as the landlord has proved that the tenant was in rent arrears. 31.The landlord herein has also not disputed that he illegally locked the suit premises which is not in accordance with Cap 301 Laws of Kenya. 32.The tribunal shall also order that the landlord is at liberty to issue a proper notice to terminate tenancy in accordance to Section 4 of Cap 301 laws of Kenya. Issue (c) Who shall pay costs of the application? 33.Under section 12(1) (k) of Cap. 301, Laws of Kenya, costs of any suit before this tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. The Applicant has succeeded in proving unlawful eviction. In the circumstances, the Respondent shall bear the costs of this application and reference. D. Final Orders 34.In conclusion, the Tribunal makes the following orders:a.The application dated 10th April 2025 is allowed in terms of prayers 2, 3 4 and 6.b.The notice of Preliminary Objection dated 21st April 2025 is therefore dismissed.c.The landlord is at liberty to issue a proper notice to terminate tenancy in strict

accordance to Section 4 of Cap 301 Laws of Kenya.d.The tenant shall continue to pay rent as and when the same falls duee.Reference dated 10th April 2025 is settled in termsf.The Respondent shall bear the costs of this reference and application, to be assessed by the Deputy Registrar of the Tribunal. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER 2025.HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE - (MEMBER)In the presence of:Ndemo for Tenant/Applicant.Kaveke for Landlord/Respondent.