[2025] KEBPRT 308 (KLR)

Mwangi t/a Hogum School v Shikalo & 4 others (Tribunal Case E256 of 2025) [2025] KEBPRT 308 (KLR) (4 June 2025) (Ruling)

Neutral citation: [2025] KEBPRT 308 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E256 of 2025

N Wahome, Chair & Joyce Murigi, Member

June 4, 2025

Between

Lucas Mwangi t/a Hogum School

Applicant

and

Agnes Shikalo

1st Respondent

Mercy Serem

2nd Respondent

Joseph Shikalo Maganga

3rd Respondent

Humphrey Odera

4th Respondent

Rebecca Akasa

5th Respondent

Ruling

1. This Ruling is on the Tenant/applicant’s notice of motion application dated 6/3/2025. The same is anchored on Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) of the Laws of Kenya and which we hereinafter refer to as “the Act”.

2. In the application, the Tenant sought for orders to have the landlord and the Respondents ordered to re-open the premises and allow him free access into the same. The Tenant also sought to have the Respondents compelled to reconnect electricity in the premises.

3. Further prayers by the Tenant were to have the Respondents restrained from letting out the premises to any 3rd party and that they be compelled to allow him quiet possession of the premises. The Tenant also sought to have any ensuing orders to be enforced by the OCS Kitengela Police Station. He also asked this court to provide for costs of the application.

4. The grievances of the Tenant’s application is that:-i.The Respondents had locked up the demised premises which is a school and occasioned him massive losses including parents withdrawing their children from the school.ii.The landlord’s caretaker had been causing nuisance thus poisoning the business environment at the school.iii.The respondents had disconnected power from the demised premises on a bill that he had not accrued.iv.He had rent arrears but was employing every effort to settle the same.

5. The Tenant also filed what he termed as submissions and statement dated 22/5/2025 which only highlighted about a sickness that inflicted him and caused him not to file a supplementary affidavit and submissions as directed by this court on the 20/3/2025. With the same, he also filed a list of documents and witness statements dated 22/5/2025 and 13/5/2025 respectively.

6. On their part, the Respondents filed the replying affidavit sworn by Agnes Shukalo on the 19/3/2025, the submissions dated 2/5/2025 and the list of authorities of the even date. The evidence of the Respondents is that:-i.The Tenant was a serial rent defaulter who was in rent arrears of Kshs.544,000/- by the 13/3/2025. ii.They had issued the Tenant with a termination notice dated the 13/3/2025. iii.The Tenant had been making promises on payment of the rent in arrears which never materialized.iv.They had locked up the demised premises due to accumulation of the rents in arrears.v.The power disconnection was by M/S Kenya Power and Lighting Company Ltd due to unpaid bills.vi.They needed to have the Tenant compelled to pay all the rents in arrears and vacate the premises.

7. We have perused the parties respective submissions filed and the case law cited and are of the view that the only issues that emerge for determination are the following:-i.Whether the Tenants Application dated 6/3/2025 has merit.ii.Whether the landlady’s notice of termination dated 13/3/2025 is lawful.iii.Who should bear the costs of this suit.

8. Before we delve into the determination of the identified issues, we have looked at the reference dated 6/3/2025 and noted that the only prayer sought is that:-“The Respondents have threatened to evict me by locking the business premises contrary to Cap. 301 of the laws of Kenya”.

9. In our view a determination on the application herein, will also resolve the aforesaid reference dated 6/3/2025. In that regard, we shall in our Ruling be making the necessary final orders on the reference.

10. On the first issue of whether the application dated 6/3/2025 has merit, we appreciate that the Tenant has not in anyway rebutted the assertion by the landlord that he has been a serial rent defaulter. At some point the rent in arrears was Kshs. 874,000/- in a premises where the monthly rent is Kshs.70,000/-. Those are rents in arrears in excess of 12 months.

11. This being a court of equity and the Tenant seeking equitable releifs, we are of the view that the same cannot be available to the Tenant. The cardinal obligation of a Tenant is to pay rent as and when the same falls due. This, the Tenant has not done. We are therefore not persuaded to confirm the interim orders of injunction granted on the 7/3/2025 and we therefore do vacate the same as we dismiss the Application dated the 6/3/2025.

12. On the question of whether the Termination notice dated 13/3/2025 is lawful, we need to look at the provisions of the Act on the pre-requisites of a lawful and valid termination notice. Section 4(2) thereof provides that:-“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”.

13. The prescribed form alluded to is provided for by Regulation 4(1) of the Regulations to the Act. The same provides that:-“A notice under Section 4(2) of the Act by a landlord shall be in form A in the schedule to these Regulations”.

14. From the above, we note that the Termination notice was not in compliance with Section 4(5) of the Act. The same did not require the Tenant to inform the landlord whether he was in agreement with the notice or not. This is a mandatory requirement that cannot be wished away. The section provides that:-“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 receipt of the notice, whether or not he agrees to comply with the notice”.

15. In this, we also find reliance in the case of Manaver N. Alibhai t/a Diani Boutique – vs- South Coast Fitness and Sports Centre Ltd Civil Appeal No. 203 of 1994 where the court held that:-“The notice shall not take effect earlier than 2 months from the date of receipt thereof by the Tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in form A also requires the landlord to ask the Tenant to notify him in writing whether or not the Tenant agrees to comply with the notice”.The landlord therefore has failed in the first limb of the legitimacy test.

16. We are also persuaded that the said notice of termination was in breach of Section 4(4) of the Act. The same provides that:-“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”.

17. The purported notice herein was issued on the 13/3/2025 and was to take effect on the same date of 13/3/2025. Such a notice cannot be lawful nor legitimate. The same was issued in blatiant breach of the Act and we proceed to declare the same a of no effect in law.

18. On costs, we note that the landlord has failed in her effort to terminate the Tenancy. She also took the law into her hands to lockup the demised premises. For those reasons, we direct each party to bear own costs.

19. In the final analysis, we make the following orders:-i.That the reference and application both dated 3/6/2025 are dismissed.ii.That the Tenant shall settle all the rents in arrears in 30 days of the date hereof and indefault the landlord to levy distress in recovery thereof at the expense of the Tenant.iii.That the termination notice dated 13/3/2025 is declared as unlawful.iv.That each party to bear own costs of this suit.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4THDAY OF JUNE, 2025. HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of Mr. Musati for the Respondents, and Mr. Mugo the Tenant in person.HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.