[2025] KEBPRT 289 (KLR)

Migoko African Dishes Limited v Kenya Cultural Centre (Tribunal Case E796 of 2024) [2025] KEBPRT 289 (KLR) (Admiralty) (19 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 289 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Admiralty

Tribunal Case E796 of 2024

CN Mugambi, Chair

May 19, 2025

Between

Migoko African Dishes Limited

Tenant

and

Kenya Cultural Centre

Landlord

Ruling

1. The Tenant’s Application dated 22. 11. 2024 seeks the following orders;-a.That the Landlord be ordered to reopen and allow the Tenant access to the demised premises on Land Parcel NO. L.R. No. 209/5XX6 (Kenya National Theatre Bar and Café, hereinafter the suit premises).b.That the Landlord be ordered to compensate the Tenant for loss of business income at the rate of Kshs. 1,125,000/= per month from September to the date of the re-opening of the premises.c.That the OCS, Central Police Station be directed to ensure compliance with the orders herein sought.d.Costs.

The Tenant’s depositions. 2. The Tenant’s affidavit in support of the Application may be summarized as follows;-a.That Tenant’s lease with the Landlord is dated 31. 10. 2019 and is for a period of five years commencing 1. 12. 2019. b.That the Tenant has put up a modern kitchen in the suit premises where it runs a Bar and Restaurant business.c.That by a letter in July 2023, the Landlord requested the Tenant to suspend operations for two months effective 1. 09. 2023 to allow for renovations of the entire Kenya National Theatre premises, the Tenant duly complied with this request.d.That the Landlord has thereafter refused to allow the Tenant back into the suit premises on the false allegation that the premises have not been handed over by the contractor.e.That the Tenant is aware that the premises renovations were long completed and there are advertisements showing that the National Theatre is in full operation.f.That the refusal to allow the Tenant back into the premises is exposing the Tenant to losses of income and business at the rate of Kshs. 2. 5 million per month.g.That the Landlord, instead of allowing the Tenant back, has issued the Tenant with a letter terminating its tenancy dated 6. 06. 2024. h.That the Landlord is acting with impunity and brazenly contravening the Tenant’s right to quiet possession of the suit premises.

The Landlord’s depositions. 3. The Respondent’s replying affidavit sworn by Ms. Ruth Wangui, an Assistant Manager with the Respondents may be summarized as follows;-a.That the Respondent is a state corporation established by the Kenya Cultural Centre Act 2018. b.That vide an agreement dated 31. 10. 2018, the Landlord leased a part of the suit premises to the Tenant to be used for the business of a bar and cafe.c.That there was a breach of the terms of the lease agreement at its commencement occasioned by the Tenant’s failure to pay the full security deposit and delays in the payment of rent.d.That the renovation works at the suit premises are supervised by the Ministry of Lands, Public Works Housing and Urban Development, hereinafter the Ministry.e.That the renovation works have not been completed and the Ministry has not handed over the same to the Respondent and therefore the Landlord cannot give access to the Tenant.f.That on 27. 7.2023, the Landlord notified the Tenant to give vacant possession of the premises to allow for renovations and the Tenant accepted vide its two letters dated 26. 9.2023. The Tenant willingly vacated the suit premises on 26. 9.2023. g.That the Tenant did not oppose the notice to vacate dated 27. 7.2023 as it has not filed any Reference against the said notice to date.h.That the Tenant has rent arrears of Kshs. 2,240,382. 92/= accrued before September 2023 and unpaid security deposit and an electricity bill of Kshs. 385,382. 95/= which the Landlord was forced to settle.i.That by its letter dated 27. 2.2023, the Tenant committed itself to pay the rent arrears in installments but failed to do so.j.That on 6. 06. 2024, the Landlord issued the Tenant with a notice to terminate tenancy on grounds of outstanding rent.k.That the lease agreement expired on 30. 11. 2024. l.That the Tenant has not suffered any financial loss which can be attributed to the Landlord.m.That the notice to vacate was not challenged and the current Reference is in reference to a notice dated 6. 06. 2024. n.That the Tenant ought to clear the outstanding rent arrears and the electricity bill.

4. Both parties have filed their submissions on the Application. The Tribunal having already held that it has the jurisdiction to hear and determine this matter, the issues that arise for determination are in my view, the following;-a.Whether the lease between the parties has expired as alleged by the Landlord.b.Which notice to terminate tenancy is in contention and/or relevant to these proceedings.c.Whether the Tenant owes rent to the Landlord and any other bills?d.Whether the Tenant is entitled to the orders sought in its Application.

Issue A: Whether the lease between the parties has expired as alleged by the Landlord 5. The Landlord has deponed at paragraph 21 of the Replying affidavit that the lease agreement between the parties expired on 30. 11. 2024 and that granting the orders sought would be tantamount to the Tribunal re-writing the lease agreement between the parties. The lease agreement between the parties is the one dated 31. 10. 2019 and at clause 3 thereof, it is provided that the lease will be for a period of five (5) years commencing 1. 12. 2019. The five years therefore expired on 30. 11. 2024 as correctly stated by the Landlord in the above paragraph. Clause 3(c) of the lease agreement provides as follows;-“By the end of the term, the Tenant shall have the right to renew the term with a period of two and half years starting from the end of term provided that the Tenant has fulfilled the terms and conditions of the lease.”

6. The lease agreement expired on 30. 11. 2024. I have not seen any evidence of the renewal of the same for a further two and half years and it is therefore true that by the time the Respondent was filing its replying affidavit on 19. 12. 2024, the lease had already expired.

7. I do note that the Tenant’s Application is dated 22. 11. 2024. it is clear that as at the time the Application was filed, the Tribunal had jurisdiction as the lease had about eight (8) days to go. Be that as it may, I do not think the filing of this Reference and the Application by the Tenant served to extend the term of the lease in any manner. In the absence of the renewal of the lease, the tenancy between the parties ceased to exist on 30. 11. 2024.

Issue B: Which notice to terminate tenancy is in contention and/or relevant to these proceedings. 8. At paragraph 15 of the replying affidavit, the Respondent has deposed that no Reference opposing the notice dated 27. 7.2023 has been filed by the Tenant. On its part, the Tenant seeks to challenge the notice dated 6. 06. 2024. The notice dated 27. 7.2023 notified the Tenant that the suit premises would be undergoing renovations during the month of September and October 2023. The notice required the Tenant to plan for the temporary closure of the premises during the renovations.The notice dated 6. 06. 2024 sought to terminate the lease agreement between the parties on account of non-payment of rent.I do not think the notice dated 27. 7.2023 had any intentions of terminating the tenancy between the parties. It was only a notification that the premises would be closed temporarily during the renovations. The Tenant was therefore not required to file any Reference against the said notice as in any event, he agreed with the temporary closure.

9. As regards the notice dated 6. 06. 2024, the same having been issued before the expiry of the lease on 30. 11. 2024, the law requires that the same be issued in the mandatory form under Section 4(2) of Cap 301. The notice dated 6. 06. 2024 does not comply with the mandatory requirements set out under Section 4 of Cap 301 and is therefore an invalid notice giving rise to no legal consequences. The non-compliance of the said notice with the requirements of the law however did not affect the expiry of the lease on 30. 11. 2024 when it can properly be said that the lease expired by effluxion of time.

Issue C: Whether the Tenant owes rent to the Landlord and any other bills? 10. The Landlord’s notice of termination of lease dated 6. 06. 2024 gave the reason for termination of lease as the Tenant’s failure to pay rent amounting to Kshs. 1,460,000/= being rent arrears from October 2022 to August 2023. In its letter dated 26. 9.2023, the Tenant admitted to having incurred a Kenya Power & Lighting Company (KPLC) bill of Kshs. 325,798. 95/=. The summary of payments annexed to the Landlord’s affidavit shows the total rent arrears to be Kshs. 2,240,382. 25/=. This figure has not been challenged by the Tenant in any manner and neither has the Tenant provided any alternative or different set of accounts to contradict the Landlord’s statement of account. The closet response I have seen is in the Tenant’s submissions at paragraph 21 hereof where the Tenant submits that the issue of rent is not an issue to be canvassed in the present Application as it can be canvassed in the main hearing. I do not agree. The Tribunal cannot shy away from determining whether or not rent is owed as it forms the basis upon which the Tribunal decides whether or not to injunct a Landlord.It is my finding therefore that based on the material placed before the Tribunal, the Tenant is in rent arrears. On the Tenant’s own admission, I also find that the Tenant owed KPLC the amount outstanding for electricity payment in the sum of Kshs. 325,798. 95. The Landlord has deponed that it had to pay for this bill and the Tenant is therefore bound to refund the same to the Landlord.

Issue D: Whether the Tenant is entitled to the orders sought in its Application 17. Following from the above findings, I do not find any merits in the Tenant’s Application dated 22. 11. 2024 and the same is hereby dismissed with costs to the Respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19THDAY OF MAY, 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Ms. Mulwa for the Landlord and Mr. Amuga for the Tenant