[2025] KEBPRT 327 (KLR)

Ngwiri v Wanyange & 2 others (Sued as the Administrator of the Estate of the Late Kariu Nyange) (Tribunal Case E142 of 2023) [2025] KEBPRT 327 (KLR) (10 July 2025) (Ruling)

Neutral citation: [2025] KEBPRT 327 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E142 of 2023

CN Mugambi, Chair

July 10, 2025

Between

Peter Njino Ngwiri

Applicant

and

Ohn Wanyange

1st Landlord

Norman Njuguna

2nd Landlord

Lucy Wangui Chege

3rd Landlord

Sued as the Administrator of the Estate of the Late Kariu Nyange

Ruling

INTRODUCTION 1. The Landlord’s notice to terminate tenancy is the one dated 18. 10. 2022 and is brought on the grounds that the Landlords want to occupy the premises for a period of not less than one year.

2. The Tenant’s Reference in opposition to the notice to terminate tenancy came up for hearing on 14. 10. 2024 and the hearings were finally concluded on 17. 3.2025.

3. None of the parties called any witnesses.

The Landlord’s case 4. The Landlord relied on his statement dated 28. 4.2023 and the documents listed in his list of documents dated 2. 05. 2023.

5. It was the Landlord’s case that he intended to carry out the business of general merchandise in the suit premises and which business is different from the textile business carried out by the Tenant.

6. The Landlord has stated that on 10. 10. 2022 and 11. 10. 2022, the administrators of the estate of the deceased Kariu Nyange met and decided to carry out a general merchandise business in Shop No. 3 belonging to the Tenant herein.

7. The Landlord further states that pursuant to the decision to carry out a business in the premises, the administrators of the Estate of the deceased Kariu Nyange served the Tenant with a notice to terminate his tenancy dated 18. 10. 2022.

8. The Landlord further stated that the administrators have set aside Kshs. 2,500,000/= for the intended business.

9. Upon cross examination, the Landlord told the Tribunal that the suit premises was still under succession proceedings. He further stated that there was no vacant shop as shop No. 2 was taken up in September 2022.

10. While being re-examined by his Advocate, the Landlord stated that the other administrators had allowed him to start the business.

The Tenant’s case 11. The Tenant relied on his statements, one dated 23. 7.2024 and an undated one filed in court on 14. 11. 2022. The Tenant further relied on his list of documents dated 22. 7.2022. The documents were produced as the Tenant’s exhibit Nos. 1-9.

12. The totality of the statements by the Tenant is that the Landlord has caused the Tenant to come to the Tribunal on several occasions to defend himself. The suits filed in court are BPRT Case No. 66 and 65 of 2015, BPRT Case No. 13 of 2021, all of which have been decided in favour of the Tenant.

13. The Tenant also states that the Landlord has on all occasions including in this suit, put forward different grounds upon which he wanted to have the Tenant’s tenancy terminated.

14. It is the Tenant’s position that the instant notice has been brought in bad faith and the notice is vexatious and solely meant to cause annoyance to the Tenant.

15. The Tenant has further stated that the notice was issued at a time when one of the shops in the premises was vacant after the Tenant therein was evicted and that is the shop the Landlord ought to have used for his purposes if he truly wanted to use the shop for own business.

16. Under cross examination, the Tenant confirmed that the notice to terminate tenancy had nothing to do with rent payments.

Analysis and determination 17. The only issue that I have to determine is whether the Landlord is entitled to terminate the tenancy herein as sought in his notice to terminate tenancy dated 18. 10. 2022.

18. The Landlord in his evidence confirmed that the suit premises wherein the Tenant’s shop is situated was at the time of this hearing under a Succession Cause. The Succession Cause is undoubtedly Nakuru High Court Succession Cause No. 640 of 2004, the Estate of the deceased Kariu Nyange. Although the Landlord and three other persons were issued with letters of administration of the said Estate on 1. 12. 2016, the Judgment of the High court in the Succession Cause indicates that during the confirmation of the grant, there were serious objections from the administrators (against the application by the landlord herein) and other Interested parties.

19. The High court ultimately decided that the twenty (20) persons agreed by the families were the legitimate beneficiaries of the Estate of the deceased Kariu Nyage. The Landlord herein was recognized as a beneficiary of the Estate in the said Judgment.

20. The court at paragraph 85 of the Judgment found as follows;-“Further and because of the size of the Estate, the parties are granted the liberty to agree on a mode of distribution that is equitable and fair and in the event that they are unable to settle, then the court shall use its inherent powers to make a determination. This conclusion is reached without prejudice to the findings above that the deceased never bequeathed any of his assets to anyone during his life time and the court will not therefore entertain any further squabbles between the twenty and how one should get more or less.”

21. The twenty beneficiaries to whom the court found deserving of the Estate of the deceased therefore became entitled to benefit from the Estate from the date of the court’s Judgment on 30. 3.2023, this becomes the day when the interest of the Landlord herein and/or any other beneficiary was created over the suit premises which formed part of the Estate of the deceased Kariu Nyange.

22. The Landlord’s notice to terminate tenancy is grounded on Section 7(1)(g) which provides that amongst the grounds upon which a Landlord may terminate tenancy are;(g)“subject as hereinafter provided, that on termination of the tenancy the Landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes or partly for the purposes of a business to be carried on by him, therein or as his residence.”

23. The Landlord’s right to oppose a Reference brought against a notice to terminate issued pursuant to the provisions of Section 7(1)(g) of Cap 301 is limited by Section 7(2) of the same Act which provides as follows;-“The Landlord shall not be entitled to oppose a reference to a Tribunal on the ground specified in subsection 1(g) of this Section if the interest of the Landlord or an interest which has merged in that interest and but for the merger would be the interest of the Landlord, was purchased or created within the five year period preceding the date of the tenancy notice seeking to terminate the tenancy and at all times since such purchase or creation the premises concerned have been occupied wholly or mainly for the purposes of a shop, hotel or a catering establishment.”

23. The notice to terminate tenancy in this matter is dated 18. 10. 2022. In the case of; The Estate of the deceased Kariu Nyange, no interest in the said Estate could have been created before 30. 3.2023 when the court declared who the beneficiaries of the Estate were. A clear reading of Section 7(2) as read with Section 7(1)(g) of Cap 301 and the Judgment of the High Court. In the aforesaid Succession Cause would show that the earliest that a notice to terminate tenancy grounded under Section 7(1)(g) of Cap 301 could be brought is five years from March 2023 i.e April 2028.

24. The notice issued to the Tenant in the year 2022 by the administrators of the Estate of the deceased Kariu Nyange was therefore issued before any interest in the property/Estate had been created and was therefore pre-mature and hence incompetent.

25. Having so found, I do not have to consider the merits of the notice to terminate tenancy and the Tenant’s Reference is therefore allowed.

26. Each party will bear their own costs as the Reference has not been determined solely on the evidence of the parties.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2025HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of the Tenant and in the absence of the Landlord and Counsel