[2025] KEBPRT 313 (KLR)

Ngome v Gabwalt Consortium Limited & another (Tribunal Case E693 of 2024) [2025] KEBPRT 313 (KLR) (22 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 313 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E693 of 2024

N Wahome, Chair & Joyce Murigi, Member

May 22, 2025

Between

Christine Ngome

Applicant

and

Gabwalt Consortium Limited

1st Respondent

Gabriel Njenga

2nd Respondent

Ruling

1. This Judgement is on the Tenant/Applicants reference dated 25/6/2024. The Tenant in the reference complained that the Landlord had locked up her business premises from the 18/6/2024 upto the date that she had sought for the intervention of this court on the 25/6/2024. She also alleged that the landlord had refused to separate the electricity meter and whereof she was compelled to buy tokens which served other premises and had therefore suffered losses at Kshs.20,000/- from such payments.

2. The reference was anchored on Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) which we hereinafter refer to as “the Act”. It was accompanied by the notice of motion application dated 25/6/2024 which had sought for reinstatement of the Tenant into the demised premises, the provision of a separate electricity meter for the Tenant and orders restraining the landlord from interfering with the Tenant’s quiet possession of shop No. 4 within Roysambu-Lumumba Drive.

3. In the Application, the Tenant had further sought to be allowed to settle the rent in arrears which she admitted at Kshs.40,000/- within three (3) months. She also prayed for costs.

4. In response to the Tenant’s reference and application aforesaid, the Respondents filed the notice of motion application dated the 4/10/2025. It sought to have the name of the 2nd Respondent namely Gabriel Njenga Expunged from the record. This was on the ground that the 2nd Respondent as an individual could not be subject to the present litigation. This application was never canvassed nor a determination made on the same.

5. In our view, the 2nd Respondent being a director of the 1st Respondent would not have been occasioned any prejudice by these proceedings. He is indeed the one who testified on behalf of the 1st Respondent. We however agree with the respondents that his inclusion in these proceedings had no backing of the law and was therefore unnecessary.

6. Turning back to the issues at hand, we appreciate that both parties did by consent agree to forego the notice of motion application dated 25/6/2024 and proceed to the hearing of the reference on its merits. In the meantime the parties were to respect the status quo obtaining at the demised premises.

7. At this point we need to highlight that this matter was heard by way of vice voce evidence on the 21/3/2025 and the parties closed their respective cases. However, the Tenant, M/S Christine Ngome and one Nancy Chelegat purported to file the witness statements dated 3/4/2025 after the hearing had closed. The same were also filed without the leave of this court and without having re-opened these proceedings. The same cannot therefore find a forum from these proceedings and are accordingly expunged from the record.

8. Having said that, we in brief state the case for the Tenant from the pleadings and evidence in court to be that:-i.The landlord unlawfully locked up her premises known as shop No. 4 within Roysambu- Lumumba Drive between the 18/6/2024 and 25/6/2024. ii.She was faithful in rent payment as and when the same fall due until her child was struck with illness and thereafter passed on.iii.The landlord had refused to separate her electricity meter and she was therefore carrying the burden for power consumption by other Tenants.iv.She only needed sometime to put her rental accounts in order.v.The business was the only source of livelihood for herself and family and the court should allow her to continue operations.vi.There was no valid notice to vacate by the landlord and orders of eviction could therefore not be granted in the circumstances.vii.Her rental arrears at the time of her testimony in court was about Kshs.90,000/-.

9. The Tenant therefore sought for the orders as hereinabove outlined but also made another prayer for Kshs.150,000/- which she claimed to be damages for the landlord having disrupted her business operations.

10. On its part and from the pleadings filed by way of the Replying Affidavit sworn on the 10/2/2025, the viva voce evidence rendered on the 21/3/2025 and the submissions dated 14/4/2025 the evidence of the landlord was that:-a.The Tenant was a serial rent defaulter was un co-operative and rude to the Landlord.b.It had given all necessary conscessions possible to the Tenant when she fell back on rent payment and in particular when she had a sick child in hospital.c.It had invoked mediation and arbitration before the chief and where the parties had reached an understanding but that the Tenant reneged on the same.d.The landlord had never disconnected power at the Tenant’s premises and that she run her own separate meter.e.It had agreed to have the Tenant vacate the demised premises without paying the rents in arrears and unconditionally.f.At the time of the 2nd Respondents evidence in court, the Tenant owed Kshs.110,540/- in rent arrears.

11. Having evaluated all the evidence on record including the parties respective submissions and the case laws cited, we are of the view that the issues that arise for determination are the following:-i.Whether the Tenant’s application dated 25/6/2024 has merit.ii.Whether the Tenant should be compelled to deliver vacant possession of the demised premises.iii.Who should bear the costs of the suit.

12. On the issue of whether the Tenant’s application dated 25/6/2024 has merit, we first observe that there is no denial by the landlord that the premises had been locked up on the 18/6/2024 and that the Tenant was allowed access on the strength of the orders herein which were issued on the 25/6/2025. The only denial on this assertion by the Tenant was only registered during the landlord’s submissions. We would tend to belief the Tenants position on that issue as she was consistent from the time she registered this suit in court.

13. It is trite that the Landlord had no authority known to the Act to interfere with a controlled tenancy in anyway adverse to the good of the Tenant without recourse and strict compliance with the provisions of Cap. 301. For the landlord to either recover the rent in arrears or terminate the tenancy, there is an overwhelming legal regime that required to be complied with for the same to be effected.

14. We are therefore of the view that the locking up of the demised premises was a good foundation under Cap. 301 for the Tenant to approach this court for intervention and which she did. At that point in time, the rent in arrears was said to be Kshs.40,000/-. That was rent for 2 months for the demised premises. The landlord was at liberty at that point to levy distress in recovery of the rent in arrears or issue a termination notice pursuant to Section 7(1)(b) of the Act but which it never did.

15. We also note that at the time of testimony in court on the 21/3/2025, the landlord asserted that the rent in arrears was Kshs.110,540/-. The Tenant on her part claimed that she had on that month alone paid over Kshs.20,000/- leaving a balance of approximately Kshs.96,000/-. There was however no commitment from her on the liquidation of either the Kshs.110,540/- as claimed by the landlord or the Kshs.96,000/- as admitted by herself.

16. The Act is a sword that cuts both ways, the Tenant requires all the protection offered by the Act whereas the landlord deserves to have its investments secured for the realization of the projected profits. This is what we are called upon to do in the overall circumstances of this case. We therefore determine that the landlord did interrupt the quiet possession of the demised premises without any authority of the law and which action was therefore unlawful.

17. We also find that the landlord is entitled to payment of rent as and when the same falls due. It is clear from the record that this has not been the case. Indeed there are admissions by the Tenant of rent arrears running consistently since the year, 2023. This being a court of equity, we direct that the Tenant shall settle all the rents in arrears which are found to be due to the landlord in 30 days of the date hereof and in default levy of distress to issue at the Tenants expense.

18. The Tenant had also brought out a claim for Kshs.150,000/- in her submission as compensation for the duration that the premises were locked up. In our view that claim is neither tenable nor with any basis in law. That claim was never pleaded nor an attempt made to prove the same. Indeed we doubt that such losses as alleged could have been suffered. This is a business that could not pay the rent of Kshs.20,000/- per month. That claim to us is therefore adventurous and lacking in any merit and we proceed to dismiss the same.

19. The 2nd issue for determination is on whether the Tenant should be compelled to deliver vacant possession of the demised premises. We reiterate that any move that may have any adverse effect to any term of a tenancy, must be effected in strict compliance with the Act. In this case, the demand letter dated 3/10/2023 and the Tenant’s purposes commitment to vacate the demised premises may not be the foundation for us to make an order for delivery of vacant possession. The act gives elaborate guidelines to be followed for such eventuality to be effected. Section 4(2) of the Act provides that:-“A Landlord who wishes to terminate a controlled tenancy, or 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”.

20. This prescribed form is provided for by Regulation 4(1) of Regulations to Act which states that:-“A notice under Section 4(2) of the Act by a Landlord shall be in Form A in the schedule to these Regulations”.The said act also requires that the Tenant is given at least two (2) months timeline before such a notice can take effect and that the grounds for the intended termination be succinctly stated. This compliance is missing from the landlord’s intention to terminate the Tenancy herein.

21. In the celebrated case of Fredrick Mutua Mulinge T/A Kitui Uniform -vs- Kitui Teachers Housing Co-operative Society Ltd (2017) eKLR the court held that:-“It is clear from the foregoing authorities that the tenancy notice dated 28/6/2014 was null and void for failing to give the appellant two months notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1/7/2014 through which the respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act”.

22. We would therefore respectively decline the invitation to make an order for delivery of vacant possession as there are no sufficient materials on record to allow for the same.

23. On the question of costs, it is our view that each party should bear own costs. This is on the ground that the landlord arbitrarily and in breach of the law locked up the demised premises and the Tenant on her part has not been meeting her cardinal obligations principal of which is to pay rent on time.

24. In the final analysis the orders that do commend to us are the following:-i.That the Tenants reference is allowed in terms that she shall be allowed complete quiet possession of the premises otherwise known as shop No. 4 at Roysambu – Lumumba Drive.ii.That the Tenant shall settle all the rents in arrears within 30 days of the date hereof and in default levy of distress to issue at the Tenant’s expense.iii.That each party shall bear own costs of this suit.Those are the orders of this court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF MAY, 2025. HON. NDEGWA WAHOME MBS - CHAIRPERSONHON. JOYCE MURIGI - MEMBERBUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of the Tenant in person and M/S Kiunga for the Respondents.