[2024] KEBPRT 405 (KLR)
The court held that the applicants could not be granted vacant possession of the suit premises in the absence of a duly served notice to terminate tenancy, as the tenancy is a controlled tenancy and the tenant is protected under Cap 301. However, since the tenant did not oppose the application and was found to be in...
Source-derived case information.
- Citation
- [2024] KEBPRT 405 (KLR)
- Parties
- Applicant: Lydia Njoka Namu; Applicant: Lawrence Mumbura; Respondent: Duncan Murimi Kiura
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E052 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Landlord's Application for Break in and Possession
- Outcome
- Application partly allowed.
- Judges
- CN Mugambi
- Legal Topics
- Controlled Tenancy, Termination of Tenancy, Rent Arrears, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lydia Njoka Namu
Applicant
Lawrence Mumbura
Applicant
Duncan Murimi Kiura
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Landlord's Application for Break in and Possession
Legal Issues
- 1 Whether the landlords are entitled to break into and take possession of the suit premises without serving a notice to terminate tenancy.
- 2 Whether the landlords are entitled to levy distress for rent arrears against the tenant.
- 3 Whether costs should be awarded to the landlords.
Ratio Decidendi
The court held that the applicants could not be granted vacant possession of the suit premises in the absence of a duly served notice to terminate tenancy, as the tenancy is a controlled tenancy and the tenant is protected under Cap 301. However, since the tenant did not oppose the application and was found to be in rent arrears of Kshs. 25,000, the landlords were permitted to break into the premises solely for the purpose of levying distress for the rent arrears. The court also awarded costs of the application and complaint to the landlords.
Court Disposition
Application partly allowed.
Orders
- Landlords are allowed to break into the suit premises only for the purposes of levying distress for rent arrears of Kshs. 25,000.
- Applicants are awarded the costs of the application and the complaint.
Full Case Text
Judgment text and source record
23 paragraphs
Namu & another v Kiura (Tribunal Case E052 of 2023) [2024] KEBPRT 405 (KLR) (14 February 2024) (Ruling)
Neutral citation: [2024] KEBPRT 405 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E052 of 2023
CN Mugambi, Chair
February 14, 2024
Between
Lydia Njoka Namu & Lawrence Mumbura
Applicant
and
Duncan Murimi Kiura
Respondent
Ruling
1. The landlord’s application dated 11. 10. 1023 seeks an order that the Applicants be granted orders to break into and take possession of the suit premises situated at plot No. 5 Kivangu market, Mutunduri Embu County, hereinafter the suit premises. The Applicants have also sought the assistance of the OCS Mutunduri police station and costs of the suit.
2. The Applicants have sworn an affidavit wherein the 1st Applicant has deponed that the tenant left the suit premises since June 2023 and efforts to trace him have been futile.
3. The Applicants have also deponed that the tenant is in rent arrears amounting to Kshs. 25,000/= and they should therefore be allowed to break into the suit premises and obtain vacant possession.
4. Although the application is not opposed, I do note that what the landlord actually wants is to termite the tenancy between themselves and the tenant. In order for the Applicants to achieve this objective, they must comply with the provisions of Section 4(2) of Cap 301of the Laws of Kenya which requires the landlords/Applicants to issue the tenant with a notice to terminate tenancy. This is so because the tenancy between the parties herein is a controlled tenancy and the tenant a protected tenant. The prayer for vacant possession can therefore not be granted in the absence of a notice to terminate tenancy duly served upon the tenant.
5. The landlords have deponed that the tenant is in rent arrears of Kshs. 25,000/=. The tenant having not filed any response to the application by the landlords, I find that the tenant indeed owes rent aforesaid.
6. Consequently, I will allow the landlords to break into the suit premises only for the purposes of levying distress for the rent arrears.
7. The Respondents will also have the costs of the application.
8. The Applicants complaint is determined in the terms set out in paragraphs 5, 6 and 7 above only with the addition that the Applicants will also have the costs of the complaint.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF FEBRUARY 2024HON. CYPRIAN MUGAMBICHAIRPERSON14. 2.2024Delivered in the absence of the parties.