Fuks v Cotswold Estate Limited [2025] KEBPRT 336 (KLR)

Fuks v Cotswold Estate Limited (Tribunal Case E283 of 2024) [2025] KEBPRT 336 (KLR) (Civ) (3 July 2025) (Ruling)

Neutral citation: [2025] KEBPRT 336 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E283 of 2024

P May, Member

July 3, 2025

Between

Jurgen Fuks

Tenant

and

Cotswold Estate Limited

Landlord

Ruling

1. The tenant approached the Tribunal by filing the Reference against the landlord dated 3rd December 2024. This is in opposition of the notice to terminate/alter terms of tenancy issued to the tenant by the landlord. The notice is dated 17th October 2024.

2. On the 20th January 2025, the landlord filed a notice of motion application dated 20th January 2025 which application is the subject of this ruling.

3. The instant application seeks for orders that:(a)That the notice issued to the tenant took effect(b)that the tenant be ordered to vacate the premises in question(c)That the tenant be ordered to pay the landlord Kshs. 5,107,200/= or in default be denied entry to the premises(d)they be awarded costs and reference as filed by the tenant be struck out

4. The tenant filed a response in opposition of the instant application. There are grounds of opposition dated 18th March 2025.

5. Parties herein filed written submissions to the application.

6. I have had a look at the Reference, Application by the landlord, the grounds of opposition and the written submissions on record

7. The notice dated 17th October 2024 was issued as per the provisions of section 4(5) of CAP 301. The tenant has in response filed the Reference dated 3rd December 2024 as required under section 6 of Cap 301.

8. Section 6(1) of the Act provides that after a reference has been filed, the notice under section 4(5) shall be of no effect until and subject to the determination by the tribunal.

9. I have taken note of the landlord’s Application and it should be imperative to observe that the Landlord’s application if allowed can determine the reference with finality at an interlocutory stage. The eviction of the tenant, will render the present reference nugatory. I am fortified by the Court of Appeal decisions in the case of; Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti & 4 Others [2016] eKLR where the court considered a persuasive decision of India on issuance of final orders at interlocutory stage.“Ashok Kumar Bajpai v Dr. (Smt) Ranjama Baipai, AIR 2004, All 107, 2004 (1) AWC 88, at paragraph 17 of the decision the Indian Court expressed as follows:“… It is evident that the Court should not grant interim relief which amounts to final relief and in exceptional circumstances where the Court is satisfied that ultimately the petitioner is bound to succeed and fact-situation warrants granting such a relief, the Court may grant the relief but it must record reasons for passing such an order to make it clear as what are the special circumstances for which such a relief is being granted to a party”.

10. I shall also reiterate the object of CAP 301 which clothes this tribunal with jurisdiction, Act of Parliament…for the protection of tenants of such premises from eviction or from exploitation and for matters connected and incidental thereto.

11. Flowing from the above therefore, my opinion is that the landlord’s application is premature.

12. Having made the above findings and analysis, I will make the following directions:a.The orders sought by the landlord are premature and shall be considered alongside the reference.b.Parties to file additional statements and documents if any within 14 daysc.Hearing on the 6th August 2025. Notice to issued.Costs shall abide by the outcome of the reference

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RDJULY 2025. HON. PATRICIA MAYMEMBER3. 7.2025Delivered in the presence of Murage for the Tenant and in the absence of the Landlord