Bihi v Omar [2025] KEBPRT 247 (KLR)

Bihi v Omar (Tribunal Case E039 of 2025) [2025] KEBPRT 247 (KLR) (25 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 247 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E039 of 2025

Gakuhi Chege, Chair & J Osodo, Member

April 25, 2025

Between

Mohamed Bihi

Tenant

and

Omar Mohamed Omar

Landlord

Ruling

A. Dispute Background 1. The landlord served the tenant with a tenancy notice dated 16th December 2024 seeking to terminate his tenancy in respect of the business premises erected on L.R No. Nairobi Block 42/316/8 on the grounds of expiry of the term of tenancy and continued violation of the terms of the tenancy agreement.

2. The notice was issued pursuant to the provisions of Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya and was expressed to take effect on 17th December 2024.

3. Being opposed to the said tenancy notice, the tenant filed the instant reference under Section 12(4) of the said statute stating that the landlord had been issuing threats of eviction contrary to Cap 301. He therefore sought for restraining orders and to be allowed to oppose the termination notice.

4. The tenant also filed a motion dated 17th January 2025 under certificate of urgency seeking for restraining orders against the landlord from evicting, locking, harassing and/or in any other manner interfering with his occupation and use of the demised premises situate along Muratina Road opposite Pumwani Shelter in Eastleigh, Nairobi and that the OCS, Eastleigh Police station does ensure compliance with the orders.

5. In support of the Complaint and the application, the tenant swore a supporting affidavit on 17th January 2025 attaching the impugned termination notice, his letter of objection dated 10th January 2025 and rent payment message as annexure “MB-A”.

6. Interim orders were granted ex-parte on 21st January 2025 pending hearing inter-partes on 19th February 2025. On the said date, the Tribunal was drawn to the attention that there was a previous case the two parties being Nairobi BPRT No. E456 of 2023 and this matter was directed to be mentioned on 25th February 2025 together with the said case.

7. On 25th February 2025, the matter was mentioned together with Nairobi BPRT No. E456/2023 and the parties were directed to file and serve their respective submissions together with any other documents intended to be relied upon in respect of the application dated 17th January 2025 filed in this matter within seven (7) days each. The matter was therefore slated for ruling on 15th April 2025.

8. On 17th February 2025, the landlord filed grounds of opposition of even date stating that the tenant’s application of 17th January 2025 was incurably defective both in substance and form and was bad in law for being res judicata since the dispute had been determined in BPRT No. E456 of 2023 and there was an application for eviction pending hearing and determination before this Tribunal in the said case.

9. The tenant is further attacked on the basis of being grossly misconceived, frivolous, vexatious, lacking in legal basis and an abuse of court process. He therefore seeks for its dismissal with costs.

10. The tenant’s Counsel filed written submissions on 8th April 2025 but the landlord’s Counsel did not file any. We shall consider the submissions together with the issues for determination.

B. Issues for determination 11. The following issues arise for determination; -a.Whether the notice to terminate tenancy dated 16th December 2024 ought to be approved or dismissed.b.Whether the instant case is res judicata.c.Whether the tenant is entitled to the reliefs sought in the application and reference dated 17th January 2025. d.Who shall bear the costs of the suit?

Issue (a) Whether the notice to terminate tenancy dated 16th December 2024 ought to be approved or dismissed. 12. The landlord herein issued the tenant with a notice to terminate his tenancy dated 16th December 2024 which was expressed to take effect on the following day being 17th December 2024.

13. Section 4(2) of Cap 301, Laws of Kenya provides as follows;“(2)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.”

14. In the case of Manaver N Alibhai T/A Diani Boutique – Vs- South Coast Fitness & Sports Centre Limited Civil Appeal No. 203 of 1994, it was held as follows: -“The Act lays down clearly 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 a 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.”

15. We have perused the notice to terminate tenancy issued by the landlord herein and noted that the same is in the prescribed form but does not comply with Section 4(4) of Cap 301, Laws of Kenya as it only gives the tenant one day to comply. The said provision is in the following terms: -“(4)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:Provided that—(i)where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated;(ii)where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice;(iii)the parties to the tenancy may agree in writing to any lesser period of notice.”

16. In the premises, the tenancy notice being for one is hereby declared invalid and of no legal effect.

Issue (b) Whether the instant case is res judicata 17. We have perused the judgement in NAIROBI BPRT NO. E456 OF 2023 rand noted that it elated to the landlord’s notice to vacate dated 23rd February 2023 which was expressed to take effect on 23rd March 2023. Judgement in the said case was delivered on 16th December 2024 and the said notice was declared invalid and of no legal effect.

18. We therefore agree with the tenant’s Counsel’s submission that the subject matter in the two cases is not similar and cannot be res judicata under Section 7 of the Civil Procedure Act, Cap 21, Laws of Kenya.

Issue (c) whether the tenant is entitled to the reliefs sought in the application and reference dated 17th January 2025 19. The tenant filed a motion dated 17th January 2025 seeking for restraining orders against the landlord from evicting, locking, harassing and/or in any other manner interfering with his occupation and use of the demised premises situate along Muratina Road opposite Pumwani Shelter in Eastleigh, Nairobi and for the OCS, Eastleigh Police station to ensure compliance with the orders.

20. The principles considered by courts in granting an order for injunction were settled in the locus classicus case of Giella Vs Cassman Brown & Co. Ltd (1973) E.A 358 wherein, it was held that an applicant must show a prima facie case with a probability of success, secondly, an interlocutory injunction will not normally be granted unless the applicant has demonstrated that he would suffer irreparable loss which cannot be compensated by an award of monetary damages and if in doubt, the court will consider whether the balance of convenience is in favour of granting the orders sought.

21. A prima facie case was defined in the case of Mrao Limited Vs First American Bank of Kenya & 2 Others (2016) eKLR: -“4. A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.

22. The Applicant has demonstrated that he has been in lawful occupation of the suit premises as a protected tenant under Cap 301, Laws of Kenya. The landlord issued an illegal notice to terminate his tenancy against the provisions of the said statute.

23. The tenant has deposed that unless the landlord is restrained through an order of injunction, he will be unlawfully evicted from the suit premises.

24. The court of appeal in the case of Thomas Smith Aikman, Allan Malloy & Others Vs Muchoki & Others (1982) eKLR while dealing with a similar situation had following to state;“The conditions spelled out above for the grant of an interlocutory injunction were rightly understood but wrongly applied as follows: first, the appellants being lawfully in possession of the estates under the authority of the debentures executed by Mbo and Loresho, and the defendants having unlawfully seized and continuing in possession of the estates, the appellants had shown a clear and overwhelming prima facie probability of success; the court ought never to condone and allow to continue a flouting of the law .Those who flout the law by infringing the rightful title of others, and brazenly admit it, ought to be restrained by injunction. If I am adding a new dimension for the grant of an interlocutory injunction, be it so. Equity will not assist law-breakers. This disposes of the second ground for affirming the decision. It was, therefore a limited approach by the learned judge to say that the injury which the plaintiffs may have suffered as result of the defendants’ trespass or acts were capable of compensation by an award of damages. I will not subscribe to the theory that a wrongdoer can keep what he has taken because he can pay for it. The real injury arose from the unlawful seizure of the estates by the defendants in defiance of the law.’ (emphasis added).

25. In the instant case, the landlord having issued an illegal notice to terminate the tenant’s tenancy cannot be allowed to evict the tenant in line with the foregoing decisions. We have also considered the preamble to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya which defines the statute as follows: -“An Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or fromexploitation and for matters connected therewith and incidental thereto.” (emphasis added).

26. In the premises, we are satisfied that based on the materials on record, the tenant has brought himself within the principles considered in an application for injunction and we shall proceed to allow both the reference and the application as prayed.

27. Before we conclude this ruling, we have noted that the tenant has submitted on matters relating to an application allegedly filed in NAIROBI BPRT NO. E456 OF 2023. While we have not seen the application in the court file, we note that judgement therein was delivered on 16th December 2024 and as such, the issues raised therein cannot be determined in this matter as no order has been made for consolidation of the two matters.

ISSUE (d) Who shall bear the costs of the suit? 28. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of every suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall award costs of the application and the reference to the tenant being the successful party.

C. Orders 29. In conclusion, the following final orders commend to us; -a.The landlord’s notice to terminate tenancy dated 16th December 2024 is hereby declared invalid and of no legal effect.b.The landlord is restrained from evicting, locking, harassing and/or in any other manner interfering with the tenant’s occupation and use of the demised premises situate on L.R NO. NAIROBI BLOCK 42/316/8 along Muratina Road opposite Pumwani Shelter in Eastleigh, Nairobi without adhering to the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya.c.The OCS, Eastleigh Police Station shall ensure compliance with the orders issued herein.d.The tenant is awarded costs of the suit assessed at Kshs 30,000/= to be offset against the rent account.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF APRIL 2025. HON GAKUHI CHEGEPANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE A. OSODOPANEL MEMBERIn the presence of: -Otinga for the tenantDayib for the landlord