Keli v Wambua [2025] KEBPRT 342 (KLR)

Keli v Wambua (Tribunal Case E957 of 2024) [2025] KEBPRT 342 (KLR) (16 July 2025) (Ruling)

Neutral citation: [2025] KEBPRT 342 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E957 of 2024

CN Mugambi, Chair

July 16, 2025

Between

Cecilia Kanini Keli

Tenant

and

Lilian Wambua

LandLady

Ruling

Introduction 1. The Landlord’s notice to terminate or alter terms of tenancy dated 21. 6.2024 is brought on the grounds;-a.That the Tenant has failed to pay rent for 2 months amounting to Kshs. 60,000/=.b.That the Tenant has fundamentally breached the terms of the tenancy by subletting shop No. 2. c.That the Landlady intends to substantially renovate and/or reconstruct the premises.

The Landlady’s Case 2. The evidence of the Landlady Lilian Wambua may be summarized as follows;-a.That she has a tenancy agreement with the Tenant.b.That she would like to have the Tenant vacate the premises to pave way for renovations.c.That the Tenant has sublet the premises.d.That the Tenant has rent arrears in the sum of Kshs. 80,000/= which she ought to pay before she vacates the premises.

3. Upon cross examination by Counsel for the Tenant, the Landlady’s responses may be summarized as follows;-a.That she did not record any statement.b.That the arrears demanded were for March and April 2024 and the payment of Kshs. 30,000/= on 4. 05. 2024 was for the month of May 2024. c.That the Landlady returned the rent for the month of February 2024 because there had been a previous notice to terminate the tenancy. It was the only refund she made.d.That on 10. 7.2024, the Tenant paid Kshs. 90,000/= but still remained with a balance of Kshs. 30,000/=.e.That the Landlady is aware that the Tenant had been awarded costs of Kshs. 20,000/= in a previous case.f.That the Landlady has no written lease agreement with the Tenant as the lease had been between the Landlady’s mother and the Tenant.g.That the Landlady has not filed any letters of administration and although there are other siblings, they have not signed the notice to terminate tenancy.h.That the Landlady has filed evidence of the works she wishes to carry out in the premises but has not filed any photographs showing the state of the building which she states is in a bad condition.i.That there are other Tenants in the building.j.That the building is a two storey building and the Tenant’s shops therein are on the ground floor and they are not adjacent to one another.k.That the Landlady at one point removed the Tenant’s window in the suit premises and a case against her was reported at Malili Police Station.l.That the Landlady will not be calling the Tenant’s alleged sub tenant as a witness.

4. The Landlady insisted upon cross examination that the Tenant had sublet the premises and that by the time the notice to terminate tenancy was served upon the Tenant, she had outstanding rent arrears in the sum of Kshs. 60,000/=.

5. She further stated that the Tenant has been paying rent into her bank account since the year 2016.

6. The Landlady further stated that she wants the premises for their own family use and also so that they can renovate the same.

The Tenant’s Case 7. The Tenant’s evidence may be summarized as follows;-a.That she has filed a witness statement and list of documents dated 22. 11. 2024 and 20. 1.2024. The court adopted the statement as the Tenant’s evidence and also allowed the documents in her list to be produced as her exhibits 1-5. b.That she is not in any rent arrears and she was not in any rent arrears when the landlady returned her rent.c.The Kshs. 90,000/= paid on 10. 7.2024 comprised of the returned February rent, July rent and another month.d.That the Tenant was not in any rent arrears when the notice to terminate tenancy was issued and no demand for any rent had been forwarded to the Tenant.e.That on 1. 06. 2019, the Landlady instructed the caretaker to place “TO LET” sign on the doors of the Tenant’s premises even as the Tenant was not in any rent arrears.f.On 9. 12. 2023, the Landlady removed the window and the door to the suit premises and after the Tenant reported the same to the police, the Landlady was forced to weld them back under police supervision.g.That in a previous case between the Landlady and the Tenant, the Tenant was awarded costs of Kshs. 20,000/=.

8. Upon cross examination, the responses by the Tenant may be summarized as follows;-a.That the Tenant took up tenancy of the suit premises on 1. 07. 2015 and her then Landlady is now deceased.b.That currently, she pays rent to Lilian Wambua, upon her request.c.That the Tenant was not in any arrears when the second notice to terminate tenancy was issued in June 2024. d.That rent was payable on or before the 5th day of every succeeding month.e.That in February and March 2024, she did not pay the rent according to the lease agreement but she paid the rent within the months.f.That the monthly rent was Kshs. 30,000/=.g.That as at the time of testifying, the Tenant was not in any rent arrears.

Analysis and determination 9. The only issue that arises for determination on this Reference is whether the Landlady has proved the grounds of termination set out in her notice to terminate tenancy and whether therefore, the court ought to approve the said notice.

10. The first ground set out by the Landlady is that the Tenant had failed to pay rent for two months amounting to Kshs. 60,000/=. These arrears are assumed to be as at 21. 6.2024. The rent statement, the Landlady’s exhibit No. 5 shows that rent had been paid for all months up to June 2024 save for the rent of April 2024 which is indicated as NIL. Even by the Landlady’s own documents therefore, as at June 2024 when the notice was issued, the Tenant was not in rent arrears for two months. The total rent paid as per the Landlady’s exhibit No. 5 is Kshs. 310,000/= in a period of ten months against a total payable of Kshs. 300,000/= giving an excess payment of Kshs. 10,000/=. The Mpesa payments annexed by the Tenant show a total payment of Kshs. 320,000/=.

11. It is also evident that the Landlady returned to the Tenant the payment for the month of February 2024 thereby disrupting the flow of payments and she cannot therefore turn around and blame the Tenant for not paying rent. On this ground, I do therefore find that the Tenant was not in rent arrears for a period of two months to warrant the issuance of a notice to terminate the tenancy on that account.

12. The second ground upon which the notice to terminate tenancy is premised is the allegation that the Tenant has sublet the second shop. I have not seen any evidence of the alleged sublease and this ground is dismissed without more.

13. The third ground upon which the notice was issued was that the Landlady intends to substantially renovate and/or reconstruct the premises. Although the Landlady suggested that the suit premises is in bad condition, she did not provide any evidence of the said condition of the suit premises by way of an engineer’s report or photographs. The ground as set out in the notice is also ambiguous as the Landlady states that she intends to renovate and/or reconstruct the suit premises. There is a clear difference between renovations and reconstruction. While determining whether or not to terminate a tenancy, different considerations are applied depending on whether the Landlord desires to renovate or reconstruct the premises. In this case, it is not clear what exact activity the Landlady desires to carry out in the premises.

14. The Landlady did not lay a basis for the works she intends to carry out in her evidence in chief, indeed it turned out that the Landlady had not even filed her witness statement which would have helped in laying the basis for the works she intended to carry out in the suit premises. It is only upon cross examination that the Landlady sought to justify her claims to the renovations and/or reconstruction.

15. The renovations shown in the Landlady’s document No. 6 for shop Nos. 2 and 5 show that both shops require flooring, painting and shelving. The price quotations for both premises are the same. The Landlady has not demonstrated that the renovations are necessary and/or that the premises are in such a deplorable state that they need the renovations. It has not been demonstrated further that the renovations sought by the Landlady cannot be carried out while the Tenant is in occupation. If indeed the Landlady was acting in utmost good faith, would it not have been easier and more business friendly to require the Tenant to vacate one premises and use the other one while renovations go on and later move into the renovated one while renovations go on in the other one?

16. The evidence presented is that the suit premises is two storeyed and the Tenant occupies the two ground floor shops. The Tenant’s shops are not even adjacent to each other as even the labeling by the Landlady shows that they are shop No. 2 and 5. There is also evidence that there are other Tenants in the suit premises. It is therefore curious that the Landlady has picked only on the Tenant’s shops for renovations and that the two shops require the exact same renovations and materials. I think it would not be far-fetched to say that the Landlady is out to get the Tenant out of the suit premises by all means!

17. Following closely on the above observation, is the admission by the Landlady that she had at some point removed the window to the Tenant’s premises. The Tenant also stated in evidence that the Landlady had actually removed a window and a door and she was forced to weld the same back under police supervision after the Tenant reported her to the police. There is also evidence that the Landlady had instructed her caretaker to paste posters on the Tenant’s business premises doors advertising the premises as being available “TO LET.” This is clearly the conduct of a Landlord who is keen on removing the Tenant by all means possible, legal and illegal.

18. Although the Landlady in her evidence in chief had stated that she intended to occupy the premises, no evidence was led in support of this allegation and neither does it form the grounds upon which the tenancy was sought to be terminating.

Disposition 19. In the final analysis and in disposing of this matter, I do not find any merits in the Landlady’s notice to terminate tenancy dated 21. 6.2024 and the same shall therefore be of no effect.

20. Consequently, the Reference by the Tenant dated 29. 8.2024 is allowed.

21. The Landlady will bear the costs of the Reference.

22. File is closed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF JUNE 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Kamolo for the Tenant and in the absence of the Landlady and Counsel