Barack v Oyugi [2025] KEBPRT 231 (KLR)

Barack v Oyugi (Tribunal Case E004 of 2025) [2025] KEBPRT 231 (KLR) (9 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 231 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E004 of 2025

N Wahome, Chair & Joyce Murigi, Member

April 9, 2025

Between

Eunice Awuor Barack

Tenant

and

Jared Oyugi

Landlord

Ruling

1. This Ruling pertains the Tenant/Applicant’s notice of motion Application dated 17. 1.2025. The same is said to be brought under Order 40 Rule 2(1), 2, 4(1) of the Civil Procedure Rules and Sections 3A & 1A of the Civil Procedure Act. The Tenant sought for orders to restrain the Landlord from interfering with her quiet possession of the demised premises.

2. The Tenant also sought to have the Landlord compelled to remove the padlocks placed on the demised premises and in default, the Tenant to break the same under the supervision of the OCS Ndhiwa Police Station. She also sought for costs of the Application.

3. The Notice of motion was accompanied by the Reference dated 17. 01. 2025 which sought for orders of permanent injunction against the Landlord from any interference with the Tenant’s quiet possession of the demised premises. For the Landlord to be compelled to open the doors that he had locked up, loss of income and general damages and costs of the suit.

4. It was the case for the Tenant/Applicant that;-i.The Landlord had purported to alter the terms of the tenancy by taking over part of the demised premises without following the due process of the law.ii.He had refused to have a sit down with her to have the rental accounts on the demised premises taken and reconciled.iii.The Landlord had threatened to altogether evict the Tenant from the demised premises.iv.He had been interfering with her quiet possession by entering her premises without her consent and harassing her and her workers.v.She was ready and willing to settle any rent in arrears once the accounts are taken and reconciled.vi.She intended to proceed with her business at the demised premises.

5. On his part, and in response to the Applicant’s Application, the Landlord filed the Replying affidavit sworn on the 3. 02. 2025. He asserted that;-i.The Tenant is a serial rent payment defaulter since August, 2023. ii.He had made several requests to the Tenant by both letters and text messages to settle the rent arrears in vain.iii.By February, 2025, the rent arrears was at Kshs. 47,000/=.iv.He had issued the Tenant with an eviction notice- annexure JO-3 dated 11. 10. 2024. v.He had on the 14. 01. 2025 accessed the backroom within the demised premises and removed the Tenant’s items and that none of the items was destroyed.vi.When he had taken the backroom aforesaid, the Tenant continued with her business and could not have suffered any losses.vii.His relationship with the Tenant had irretrievably broken down and wanted her to vacate the demised premises without even paying the Kshs. 47,000/= in rent arrears.

6. Having perused the parties pleadings and attached evidence and also the parties oral submissions made in court on the 06. 03. 2025, we are of the view that the issues that arise for determination in this matter are the following;-A:Whether the notice of termination of Tenancy dated 11. 10. 2024 is lawful.B:Whether the Tenant’s Application has merit.C:Who should bear the costs of the Application.

7. On the 1st issue of whether the Landlord’s notice of termination dated 11. 10. 2024 is lawful, we revert our attention to the provisions of Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) hereinafter “the Act”.It provides the following;-“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.”

8. The prescribed from above is provided for under 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.”

9. Further Section 4(4) of the Act gives strict timelines to be observed and complied with for a termination/eviction notice to be effective. It states thus;-“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.”

10. It is also mandatory under the Act for the Landlord to state the grounds upon which such termination notice is founded on. The same states that;-“where under Section 4 of this Act served a notice of termination of a controlled tenancy on the Tenant, the grounds on which the Landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice.”

11. We do appreciate that Cap 301 is a piece of legislation that calls for strict and complete compliance with its provisions. We doubt that the purported termination notice dated 11. 10. 2024 met the threshold of the Act. In this, we rely on the case of; Manaver W. Alibhai t/a Diani Boutique vs South Coast Fitness & Sports Centre Ltd., Civil Appeal No. 203 of 1994 where the court held that;-“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the Tenant, of any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of the notice in the prescribed form. 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.”

12. From the foregoing, we are easy to declare that the Termination notice by the Landlord dated 11. 10. 2024 was unlawful and therefore of no effect in law.

13. The 2nd issue is on whether the Tenant’s Application dated 17. 1.2025 has merit.There is no contestation that the Landlord without the consent of the Tenant did invade her back room and took possession of the same. He also denied the Tenant access to the same by installing padlocks thereon. The Tenant was only restored to the premises by an order of this court.

14. The Tenant has also deposed that she has paid all rents until January 2025. She gave the reason for non-payment of further rents as the refusal by the Landlord to receive the same.

15. We are persuaded from the evidence on record that the Tenant was entitled to move this court for protection from the arbitrary activities of the Landlord as enumerated hereinabove. The Landlord’s action of taking over possession of part of the demised premises was unwarranted and was in breach of Cap 301.

16. It is our view then that the Tenant has shown a prima facie case with a probability of success as her fundamental rights to quiet possession of the demised premises had been unfairly interfered with and in plain breach of the law.

17. We are also persuaded that the Tenant would suffer irreparable damage in the event that the interference to her business continued and if she was evicted without regard to the law. In this we rely on the case of; Waithaka vs Industrial and Commercial Development Corporation [2001] eKLR where the court held that;-“As regards damages, I must say that in my understanding of the law, it is not inexorable rule that where damages may be an appropriate remedy, an interlocutory injunction should never issue. If that were the rule, the law would unduly lean in favour of those ……..enough to pay damages for all manner of trespasses. That would not only be unjust but it would also be seen to be unjust. I think that is why the East African Court of Appeal couched the second condition in very careful terms by stating that normally an injunction would not issue if damages would be adequate remedy.”

18. In our overall view of this matter, we find that the balance of convenience tilts in favour of the grant of the interim orders of injunction as sought by the Tenant. In our view therefore, we are persuaded that the Tenant has satisfied all the requirements for the grant of the injunction sought as set down in the case of; Giella vs Cassman Brown & Co. [1973] EA 358. ”

19. The 3rd issue is on costs. We are of the view that the same should abide the outcome of the Reference herein which is dated the 17. 1.2025.

20. In the final analysis, the orders that commend to us are the following;-a.That the Application dated 17. 1.2025 is allowed in terms that the Tenant shall be allowed complete quiet possession of the demised premises.b.That the notice of termination/eviction dated 11. 10. 2024 is declared unlawful and of no effect.c.That costs shall abide the outcome of the Reference.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF APRIL, 2025. HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSON,HON. JOYCE MURIGI, - MEMBER,BUSINESS PREMISES RENT TRIBUNAL.Delivered in the presence of Mr. Migele for the Landlord and the Tenant in personCourt: The parties to take rental accounts in thirty (30) days and settlement thereof by the Tenant. Mention on the 16. 5.2025 with a view to recording a final settlement in this matter.HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSON,BUSINESS PREMISES RENT TRIBUNAL.