[2025] KEBPRT 228 (KLR)

Savasci t/a Truckkom Enterprises v Board of Management Pumwani Boys Secondary School; Gabow & another (Interested Parties) (Tribunal Case E1118 of 2024) [2025] KEBPRT 228 (KLR) (11 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 228 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1118 of 2024

N Wahome, Chair & Joyce Murigi, Member

April 11, 2025

Between

Sonat Savasci T/A Truckkom Enterprises

Tenant

and

Board of Management Pumwani Boys Secondary School

Landlord

and

Khalif Ahmed Gabow

Interested Party

Abdukadir Aden Ibrahim

Interested Party

Ruling

1. This Ruling pertains the Landlord/Applicant’s notice of motion Application dated 16. 12. 2024. the same is anchored on Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) hereinafter referred to as “the Act.” Together with the motion, the Landlord filed the Reference dated the 16. 10. 2024. The grievance by the Landlord is that;-“The Tenant has not been paying rent, has frustrated efforts to recover rent and has refused to leave the premises even after notice was given.”

2. In the notice of motion dated 16. 10. 2024, the Landlord sought for a declaration that the Landlord/Tenant relationship between it and the Respondent stood terminated in view of the termination notice dated 20. 11. 2023. The Landlord also sought for an order to have the Tenant compelled to pay the rent in arrears at Kshs. 1,656,000/= and to be evicted from the demised premises with the assistance of the OCS Pangani Police Station. It also sought for costs of these proceedings.

3. By an Application dated 3. 02. 2025, the Interested Parties who are the sub-tenants of the Tenant on the demised premises otherwise known as L.R. NO. 209/7361 Nairobi were joined into these proceedings as such. The orders to that effect were made on the 10. 12. 2024 with the concurrence of all the parties.

4. The Interested Party thereafter filed the Replying Affidavit and the Further Affidavit both sworn by Abdulkadir Ahmed Gabow, the 2nd Interested Party on the 3. 02. 2025 and on the 26. 2.2025 respectively.

5. On the part of the Tenant, it was filed a Replying Affidavit sworn by Sonat Savasci on the 22. 11. 2024. The Tenant however protested not having been served with the pleadings by the Landlord. The later on its part emphasized that it had served all its pleadings on the Tenant and had filed an affidavit of service to that effect. The service was by one Daniel Mandala who had sworn an Affidavit of service on the 24. 10. 2024 to that effect.

6. By Directions taken in court on the 5. 02. 2025, all the three parties agreed to canvass the Landlord’s Application dated 16. 10. 2024 by way of oral submissions and which were duly rendered on the 6. 03. 2025 and the matter reserved for Ruling today the 11. 4.2025.

7. The evidence of the Landlord is that;-i.The Tenant was a serial rent defaulter who between the year 2018 and today’s date had only paid Kshs. 48,000/= for March, 2024 to comply with court orders to that effect in Milimani Chief Magistrates Court in Case No. 5264 of 2023. ii.The rents in arrears at the time of coming to court was Kshs. 1,656,000/= which continues to increase to date.iii.The Tenant had removed all his goods from the demised premises to defeat any levy of distress and is no longer in occupation of the premises.iv.By a Ruling in Milimani Chief Magistrates Court in Case No. 5264 of 2023, the relationship between the parties herein was declared a controlled tenancy.v.The notice of termination of tenancy dated 20. 11. 2023 had taken effect and should be upheld with the eviction of the Tenant.vi.The Interested Parties were paying rent to the Tenant and who was not making any payment to the Applicant.vii.It had no objection to the Interested Parties occupying the demised premises and dealing with it directly.viii.The Tenant had previously admitted the jurisdiction of this Tribunal in BPRT Case No. E766 of 2023.

8. The evidence of the Tenant on the other hand is that;-i.The Applicant was a Government institution and this court could not assume jurisdiction in the present dispute.ii.The Tenancy agreement between the parties was for a period exceeding 5 years and therefore not a controlled tenancy under the jurisdiction of this court.iii.In Milimani CMCC Milimani Chief Magistrates Court in Case No. 5264 of 2023 they had filed an Application dated 14. 11. 2024 to review the orders made on the 8. 08. 2024. iv.In BPRT Case No. E766 of 2023, the court had directed the Interested Party not to pay rent for a period of 12 months.The Tenant therefore sought for the dismissal of the Landlord’s Application and suit.

9. The evidence of the Interested Party was that;-i.It entered into a tenancy agreement with the Tenant on the understanding that the Tenant had the consent of the Landlord to that effect.ii.The Tenant thereafter declined to formalize their relationship and issued them with a notice to terminate tenancy.iii.They were regularly and as required paid rent to the Tenant but later realized that the Tenant was not paying any rent to the Applicant.iv.On being issued with a termination notice by the Tenant, they filed BPRT Case No. E766 of 2023 and in a Judgment dated 2. 10. 2024, the notice of termination was dismissed, the Tenant was barred from issuing any other termination notice within a period of 12 months and was condemned to pay costs at Kshs. 50,000/=.v.The Tenant has moved all his goods/equipment from the demised premises and is no longer in occupation of the same.The Interested Parties therefore sought to be allowed to continue with their tenancy and operations on the demised premises as they had already established a relationship with the Applicant

10. We have perused the parties pleadings and the oral submissions rendered on the 6. 03. 2025 and are of the view that the issues that emerge for determination are the following;-i.Whether this court has jurisdiction in this matter.ii.Whether the Applicant’s Application has merit.iii.The rights or otherwise of the Interested Parties in the Tenancy herein.iv.Who should bear the costs of these proceedings.

11. Before we delve into the determination of the identified issues, it is our view that the determination of the Landlord’s Application shall also with finality resolve the Reference herein and dated 16. 10. 2024. The reason being that all the issues in this Application which have been exhaustively canvassed, are the same issues in the said Reference.

12. On the question of whether this court has jurisdiction to superintend over this matter, we do appreciate that the Chief Magistrates court at Milimani had in case No. CMCC No. E5264/2023 between the same parties and on the same subject matter noted that;-“I find that the Tenancy between the plaintiff and the Defendant is a controlled tenancy and which should have been filed before the Business Rent Tribunal under Section 6 of the Act.”

13. There is no evidence on record that the said holding has been reviewed or successfully appealed against. In that regard, this Tribunal would be over reading itself if it attempts to revisit the issue. The Constitution of Kenya, 2010 has defined the structure of our Judiciary. It provides that;-“169 (1) The subordinate courts are-a.The Magistrates courts,b.The Kadhis courts,c.The courts martial; andd.Any other court or local Tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162(2).”

14. We therefore and pursuant to the declaration of the Chief Magistrates Court and in view of the hierarchy of courts as provided by the Constitution confirm our Jurisdiction to preside over all the issues presented before us by the respective parties.

15. On the same question of Jurisdiction, the Tenant has testified that the Tenancy relationship between the parties was for a period exceeding 5 years and therefore outside the governance of this court under Section 2(1) of the Act. The Tenant filed Annexure SS1 which is a letter dated 14. 06. 2012 to that effect.

16. That tenancy agreement between the Landlord and the Tenant was for a period of at least six (6) years. The period of six (6) years must have lapsed on or about 15. 06. 2018. There was no evidence that the same was renewed. In the absence of any written evidence of renewal thereof, it follows that the relationship reverted to a month by month Tenancy. Such a tenancy is controlled and is well within the jurisdiction of this court.

17. The 2nd issue for determination is whether the Landlord’s Application has merit. In this, we appreciate that the notice of termination dated 20. 11. 2023 is acknowledged by the Tenant by the letter dated 23. 11. 2023. The same has not been challenged in any other way by the Tenant and in our view the same took effect on the 30. 12. 2023.

18. To challenge the notice of termination, the Tenant was required to have complete compliance with Section 6 of the Act. The same provides that;-“A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under Section 4(5) of this Act that he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take effect, refer the matter to the Tribunal, whereupon such notice shall be of no effect until, and subject to the determination of the Reference by the Tribunal.”

19. Despite not challenging the termination notice dated 20. 11. 2023 as required by the law within the timeframe provided, the Tenant also never sought the leave of this court for extension of time to do so. The proviso to Section 6 of the Act provides that;-“Provided that a Tribunal may, for sufficient reason and on such conditions as it may think fit, permit such a Reference notwithstanding that the receiving party has not complied with any of the requirements of this Section.”

20. In default of the above by the Tenant, all the avenues to challenge the termination notice dated 20. 11. 2023 were effectively closed to him and consequently, the said notice is upheld.

21. When the Landlord came to court, it claimed that the rents in arrears owed to it was Kshs. 1,656,000/=. At the time of oral submissions in court, there was no evidence that the Tenant had paid any rent to the Landlord since October 2024 at Kshs. 48,000/= per month.

22. Indeed, the Tenant did not however remotely demonstrate any payment of rent to the Landlord between the year 2018 to date except for the Kshs. 48,000/= paid for March, 2024 as admitted by the Landlord.

23. The effect of that is that in addition to the Kshs. 1,656,000/= which was in arrears as at 16. 10. 2024, there has accrued rent arrears/mesne profits at the rate of Kshs. 48,000/= per month for the period October, 2024 and April 2025 at a total of Kshs. 336,000/= for the period of seven (7) months. The sum total in rent arrears/mesne profits is therefore Kshs. 1,992,000/= which is payable to the Landlord.

24. We therefore find merit in the Landlord’s Application and do allow the same in the above terms.

25. There is also the issue of the rights of the Interested Parties in the Tenancy herein. In this, we are guided by the provisions of Section 5(1) of the Act. The same provides that;-“5(1) where a Landlord is himself a tenant, the termination of the landlord’s tenancy shall not of itself terminate a controlled sub-tenancy, but for the purposes of this Act the person entitled to the interest in reversion expectant on the termination of the landlord’s tenancy shall be deemed to be the landlord of the controlled sub-tenancy upon the terms and conditions thereof and subject to the provisions of this Act.”

26. In this case, the interest in reversion of the demised premises after the termination of the Landlord and Tenant relationship herein vests in the Applicant. The Applicant is therefore the Landlord of the controlled sub-tenancy held by the Interested Parties.

27. We would therefore determine that on the termination of the tenancy relationship between the Landlord and Tenant, there was automatically established, a Landlord and Tenant relationship between the Applicant and the Interested Parties pursuant to Section 5(1) of the Act.

28. In view of the above determination, we need not emphasize the rights of the Interested Parties which crystalized and are also secured by the orders of this court issued on the 2. 10. 2024 in BPRT Case No. E766 of 2023.

29. The last issue for our consideration is on costs. Costs are at the discretion of the court but must normally follow the event. We would therefore under Section 12(1)K of the Act award costs to the Applicant and the Interested Parties.

30. In the final analysis, the orders that commend to us are the following;-i.That the notice of termination of Tenancy dated 20. 11. 2024 took effect on the 31. 12. 2024. ii.That the Tenant owes the Landlord rent arears and mesne profits at Kshs. 1,992,000/= and the same should be settled by the 30. 4.2025 and in default, the Landlord is at liberty to institute recovery proceedings at the Tenant’s expense.iii.That the Tenant is required to vacate the demised premises immediately and in any event by the 30. 4.2025 and in default, be evicted at his cost with the assistance of the OCS Pangani Police Station.iv.That there is established a controlled tenancy between the Tenant and the sub-tenants/Interested Parties and which should be formalized in the next thirty (30) days of the date hereof.v.That all the rents for the demised premises held by the Interested Parties should be paid to the Landlord immediately and those deposited at the Tribunal are ordered released to the Landlord’s Counsel forthwith.vi.That the Tenant shall pay costs to the Landlord and the Interested Parties assessed at Kshs. 50,000/= and Kshs. 30,000/= respectively.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11THDAY OF APRIL, 2025. HON. NDEGWA WAHOME, MBS,- PANEL CHAIRPERSON,BUSINESS PREMISES RENT TRIBUNAL.ANDHON. JOYCE MURIGI- MEMBER,BUSINESS PREMISES RENT TRIBUNAL.Delivered in the presence of;Mr. Muriithi Kimathi for the Landlord and also holding brief for Mr. Anyoka for the 1st and 2nd Sub-tenants.Mr. Nyakundi for the TenantMr. Nyakundi: I have received some documents from the Tenant and I have filed an Application to arrest the Ruling.Court: This Ruling was to be delivered on the 10. 4.2025. The purported Application to arrest this Ruling is yet to be brought to my attention. I will proceed and deliver the Ruling. Mention on the 12. 05. 2025 to confirm compliance and possibly close the file.