Kimani & 2 others v Mungai [2025] KEBPRT 287 (KLR)

Kimani & 2 others v Mungai (Tribunal Case E336 & E365 of 2023 (Consolidated)) [2025] KEBPRT 287 (KLR) (14 May 2025) (Judgment)

Neutral citation: [2025] KEBPRT 287 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E336 & E365 of 2023 (Consolidated)

Gakuhi Chege, Chair & J Osodo, Member

May 14, 2025

Between

Catherine Nyambura Kimani

1st Tenant

Silas Kimathi Kimani

2nd Tenant

Susan Kulet

3rd Tenant

and

Hannah Njeri Mungai

Landlord

Judgment

A. Dispute background 1. The landlord herein served the tenants with notices dated 6th December 2022 seeking to terminate their tenancies in respect of a business premises situate at Mamyinn-Ruiru with effect from 1st March 2023.

2. The tenancy notices were based on the grounds that the landlord intends to undertake major renovations and repairs of the said property and add on the current structure which cannot be done while they are in occupation. The notices were expressed to take effect on 1st March 2023.

3. The tenants failed to file their references in time as a result of which they applied vide Nairobi BPRT No E336 of 2023 for enlargement of time to do so. The said application was heard by this Tribunal and in a ruling delivered on 11th January 2024, they were allowed to file and serve individual references against the landlord’s notices dated 6th December 2022.

4. In the pendency of the foregoing proceedings, the landlord moved this Tribunal vide Nairobi BPRT No E365 of 2023 seeking in pertinent part that the tenants be ordered to give vacant possession of the business premises located at Mamyinn-Ruiru on account of nonpayment of rent and in default, the OCS Ruiru Police Station to enforce eviction.

5. In her supporting affidavit sworn on 6th December 2023, the landlord deposed that she served the tenants with termination notices under Section 4(2) of Cap 301 but they did not file any references in opposition thereto but instead filed a Complaint in the instant case. They also failed to pay rent for the preceding two months.

6. The two cases were on 26th May 2023 consolidated for hearing and determination with Nairobi BPRT No E336 of 2023 being the lead file.

7. Through a motion dated 5th September 2024, the tenants sought for inspection of the suit premises by the Tribunal’s Rent Inspector for purposes of preparing a report to aid in determination of their reference. Although, the application was contested, the same was allowed vide a ruling delivered on 23rd October 2024.

8. Pursuant to the said ruling, the Tribunal’s Rent Inspector visited the suit premises and filed a report wherein he concluded as follows: -“………the front shops are hindering construction and renovation in the building as shown by the attached pictures and my own observation. It is also clear that the front shops are not connected to the residential units and therefore construction/improvements can be done with no effect to the other residential tenants.”

9. On 20th May 2024, the parties were directed to comply with Order 11 of the Civil Procedure Rules within 35 days thereof with the landlord taking 21 days and the tenants taking 14 days thereafter.

10. Pursuant to the said directions, the landlord filed her witness statement dated 5th December 2024 together with a list and bundle of documents dated 7th December 2024 containing 9 documents to wit: -i.Copy of official search over LR No Ruiru East Block 1/1863ii.Copy of marriage certificate dated 9th July 2018iii.Copy of death certificate dated 13th January 2022iv.Initial building plans dated 23rd December 2022v.Equity Bank statements dated 7th December 2o24vi.NEMA receiptvii.Rent statements dated 5th December 2024viii.Screen recordingsix.Photos of the premises.

11. The landlord subsequently filed a further list of documents dated 20th February 2025 containing 3 documents being professional and practicing certificates for Jesse Karanja Kimani dated 13th September 2018 and 1st July 2024 respectively together with an invoice and payment receipt for Kshs 141,640/= and Kshs 47,560/= respectively issued by the County Government of Kiambu.

12. On the other hand, the tenants filed their respective witnesses’ statement but eventually settled on the witness statement by Catherine Nyambura Kimani/1st tenant dated 27th January 2024 together with a list of documents of even date containing 2 documents namely; authority to act signed by her co-tenants and filtered Mpesa statements.

13. The matter proceeded by way of viva voce evidence on 30th January 2025 and 26th February 2025 with witnesses except LW2 (Jesse Karanja Kamau) relying on their filed witnesses’ statements together with their documents and thereafter being cross examined.

14. LW1 was the landlord who testified that she owns LR No Ruiru East Block 1/1863 which she previously owned jointly with her late husband one Paul Mungai Wambugu. The premises comprise of three shops which face the road and residential units. According to the landlord, there is no connection between the three shops and the residential units.

15. On or about October 2022, the landlord embarked on building additional units while the tenants were still in occupation. The construction was thereafter stopped by the County Government on account of lack of approved building plans. The landlord thereafter engaged an Architect to draw the building plans dated 23rd December 2022 which on presentation were not approved.

16. Her building plans were only approved after presenting a third application to the County Government. It was recomended that the shops be demolished to create parking space for all the other units on the property. The new plans provided for 3 additional floors on the block housing the tenants’ shops.

17. The landlord set aside funds to implement the building plans in phases. The first phase would be the shops’ block which is separate from the residential units.

18. The landlord initially spoke to the tenants who agreed to give vacant possession on the understanding that they would return thereto on completion of the construction works. The landlord therefore refunded the November 2022 rent amounting to Kshs 15,000/= each to the 1st and 3rd tenants who had already paid but the 2nd tenant had not. They however failed to vacate. As a result, the landlord issued them with notices to terminate their tenancies which are now the subject matter of this reference.

19. On cross examination, the landlord stated that she paid Kshs 141,644/= for the building plans approval and Kshs 50,000/= for the structural plans. Although she had not filed the approved structural drawings and bills of quantities, she confirmed that she had them. she said that she was in the process of obtaining the National Construction Authority certificate.

20. In re-examination, she stated that it was possible to undertake construction of the premises without affecting the residential tenants.

21. The landlord called her Architect one Jesse Kiranga Kimani as LW2. He testified that the initial building plans were rejected on account of failure of the previous Architect to provide a building line and an assumption that the access to the neighboring plot was a public road which was erroneous. A second plan was also rejected for the same reasons.

22. The witness testified that he drew the final approved plans which provided for a 3. 5 meters building line. The building entrance was to change from the left to the right side for the parking space. The landlord has to demolish the shops occupied by the tenants to enable shifting of the entrance and creation of space for the building line. This cannot be done whilst the tenants remain in occupation. The construction will be done in phases. He confirmed that it was possible to undertake phase 1 construction without affecting the residential units.

23. The witness stated that all the approvals from the relevant authorities had been acquired for the development. He stated that he was working with a Structural Engineer, Quantity Surveyor and an Environmental Impact Assessor. He confirmed that the structural drawings had been approved. He produced the payment receipts for the various approvals.

24. The Architect explained how the construction would be undertaken with excavation being done for the bases and columns. The ground floor will have the parking and shops. The witness stated that phase 1 of the building will cost approximately Kshs 2. 814 Million for the shops. He confirmed that there was a bill of quantities for the whole construction as well as structural drawings.

25. The 1st tenant testified on her own behalf and that of her co-tenants. She relied on her filed witness statement and documents. She testified that she took possession of the suit premises in May 2021. She stated that the landlord did not inform her at the point of entry into the shop that she intended to undertake renovation of the suit property.

26. However, in early 2022, the landlord started building while they were still in occupation of their business premises. At the time of hearing, there was no ongoing construction at the suit premises. The witness stated that the previous construction was being undertaken when they were still in occupation of the suit premises.

27. The witness stated that the landlord intended to bring in new tenants into the suit premises pointing to an advert on top of the building to the said effect. It was her evidence that the landlord has no intention to construct. She stated that she required one year to relocate from the premises.

28. On cross examination, she stated that the landlord had issued them with a verbal notice before giving the formal December 2022 notice to vacate from the suit premises. She conceded that any construction must comply with approved building plans.

29. She stated that she was not aware that the initial building plans had been disapproved. She confirmed that the initial building plans did not provide for parking lots. She confirmed that rent for November and December 2022 had been waived and was still unpaid by the date of her testimony.

30. After the close of both parties’ cases, they agreed to file written submissions. The landlord’s submissions are dated 6th March 2025 while the tenant’s submissions are dated 18th March 2025. We have read and taken the submissions into consideration in arriving at our decision herein.

B. Issues for determination. 31. The following issues arise for determination; -a.Whether the landlord’s notices to terminate the tenants’ tenancies ought to be approved or dismissed.b.Whether the tenants owe rent arrears to the landlord.c.Who shall bear the costs of the case?

Issue a) Whether landlord’s notices to terminate the tenants’ tenancies ought to be approved or dismissed. 32. The landlord herein served the tenants with notices dated 6th December 2022 seeking to terminate their tenancies in respect of a business premises situate at MamyInn-Ruiru with effect from 1st March 2023.

33. The tenancy notices were based on the grounds that the landlord intends to undertake major renovations and repairs of the said property and add on the current structure which cannot be done while they are in occupation. The notices were expressed to take effect on 1st March 2023.

34. It is not contested that the tenancies herein are controlled within the meaning and interpretation of Section 2(1) of Cap 301, Laws of Kenya. Sections 4(1) & (2) of the said statute provides as follows;“(1)Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall 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 the following provisions of this Act.(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.”

35. We have looked at the tenancy notices served upon the tenants and confirmed that the same are in tandem with the foregoing legal provisions.

36. Section 6(1) of the same statute provides as follows;“6. Reference to TribunalA 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 a Tribunal, whereupon such notice shall be of no effect until, and subject to, the determination of the reference by the Tribunal: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.”

37. Although the tenants did not file references against the said notices within the time prescribed by the said statute, leave was subsequently granted to them in this case to institute the same out of time.

38. The ground for termination of tenancy set out in the tenancy notices herein is provided for under Section 7(1)(f) of the said statute as follows;“(f)that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises.”

39. The landlord gave evidence in support of the tenancy notices and called LW2 to corroborate her evidence. She also produced several documents including approved building drawings to prove her settled intention to undertake substantial construction of the suit premises.

40. The tenants on the other hand testified that in early 2022, the landlord started building while they were still in occupation of their business premises. She however stated that at the time of hearing of the case, there was no construction going on at the suit premises.

41. The witness further stated that the landlord intended to bring new tenants into the suit premises pointing to an advert on top of the building to the said effect. It was her evidence that the landlord has no intention to construct. She stated that she required one year to relocate from the suit premises.

42. On cross examination, she stated that the landlord had issued them with a verbal notice before giving the formal notice in December 2022 to vacate from the suit premises. She conceded that any construction must comply with approved building plans.

43. She stated that she was not aware that the initial building plans had been disapproved. She however confirmed that the initial building plans did not provide for parking lots.

44. We have gone through the evidence and submissions of both Counsel in this matter and in particular the common decision cited in the case of Auto Engineering Ltd v Gonella & Co. Ltd (1978) eKLR, wherein the Superior court held as follows; -“The first authority to which Mr Esmail referred us in connection with this part of his appeal was Fisher v Taylors Furnishing Stores Ltd [1956] 2 All ER 78, and he referred us to a passage from the judgment of Morris LJ at page 81, in reference to section 30(1)(f) of the Landlord and Tenant Act 1954, which is as follows:‘There must, therefore, be an intention and it must be an intention which in point of time is related to the termination of the current tenancy. It seems to me that the intention must be to do one of the following things: (i) to demolish the premises comprised in the holding; or (ii) to reconstruct the premises comprised in the holding; or (iii) to demolish a substantial part of the premises comprised in the holding; or (iv) to reconstruct a substantial part of the premises comprised in the holding; or (v) to carry out substantial work of construction on the holding; or (vi) to carry out substantial work of construction on a part of the holding.” Emphasis added)

45. Counsel for the tenants submitted that the repairs intended to be undertaken by the landlord are not substantial within the meaning and interpretation of Section 7(1)(f) of Cap 301 and therefore do not warrant permanent eviction of the tenants. He further submits that there was no Environmental Impact report as well as the Structural Drawings, NCA & Public Health certificates produced by the landlord during the hearing of the case.

46. However, based on all the materials on record, we are of the view that there is sufficient evidence to demonstrate that the landlord has a serious intention to undertake substantial construction of the suit premises which cannot be done whilst the tenants remain in occupation thereof. We have given due weight to the evidence of LW2 (Jesse Karanga Kimani) who testified that he drew the final approved building plans which provided for a 3. 5 meters building line. The building entrance was to change from the left to the right side for the parking space. The landlord has to demolish the shops occupied by the tenants to enable shifting of the entrance and creation of a space for the building line. This cannot be done if the tenants are to remain in occupation. The construction will be done in phases. He confirmed that it was possible to undertake phase one construction without affecting the residential units.

47. The witness stated that all the approvals from relevant authorities had been acquired for the development. He stated that he was working with a Structural Engineer, Quantity Surveyor and an Environmental Impact Assessor. He confirmed that the structural drawings had been approved. He also produced the payment receipts for the various approvals.

48. The Architect explained how the construction works would be undertaken with excavation being done for the bases and columns. The ground floor will have the parking slots and shops. The witness stated that phase one of the building will cost approximately Kshs 2. 814 Million for the shops. He confirmed that there was a bill of quantities for the whole construction as well as structural drawings.

49. After giving due regard to the evidence herein, we have no reason to doubt the expert witness on what requires to be done before the construction can be undertaken. We also believe that the landlord would not have undergone the trouble of having building plans drawn, paid for and approved without a settled intention to undertake the construction. Indeed, the landlord had initially started the construction without the building plan approvals but was stopped by officials of the County Government of Kiambu for that reason. This further constitutes evidence of settled intention to undertake the construction.

Issue (b) Whether the tenants owe rent arrears to the landlord 50. In her evidence before this Tribunal, the landlord stated that she initially spoke to the tenants who agreed to give vacant possession of their occupied premises on the understanding that they would return thereto on completion of the construction works. The landlord therefore refunded the November 2022 rent amounting to Kshs 15,000/= each to the 1st and 3rd tenants who had already paid but the 2nd tenant had not. The tenants did not also pay rent for the month of December 2022. However, they failed to vacate.

51. By the time of hearing of the case, the landlord testified that the 1st tenant had further rent arrears of Kshs 15,000/=, the 2nd tenant owed a further Kshs 32,400/= while the 3rd tenant owed a further sum of Kshs 15,000/=.

52. The 1st tenant in her testimony before court confirmed that they did not pay rent for the months of November and December 2022 as the same was waived by the landlord. This is however discounted by the landlord’s testimony that the amount became due and payable when the tenants failed to vacate the suit premises voluntarily as agreed.

53. We therefore find and hold that each tenant owes the landlord a sum of Kshs 30,000/= being rent for the months of November and December 2022 and the landlord is therefore entitled to recover the same together with any other amount which has accrued during the pendency of this suit.

Issue c) Who shall bear the costs of the case? 54. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. We shall award the costs of the Reference to the landlord being the successful party.

C. Orders 55. In view of the foregoing, the following final orders commend to us; -a.The Landlord’s notices to terminate the tenants’ tenancies dated 6th December 2022 are hereby approved.b.The tenants are hereby ordered to give vacant possession of the business premises located at MamyInn-Ruiru within the next Thirty (30) days hereof failing which they shall be evicted therefrom by a Licensed Auctioneer who will be given security by the OCS Ruiru Police Station.c.The Tenants’ shall pay to the landlord Kshs 30,000/= each being rent arrears for the months of November and December 2022 together with any other amount which may have accrued in the pendency of this suit within the next Twenty-one (21) days hereof and in default, the landlord shall be at liberty to use lawful means to recover the same.d.The costs of the Reference are awarded to the landlord.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14th DAY of MAY 2025. HON. GAKUHI CHEGE(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO(MEMBER)In the presence of: -Mwikali holding brief for Murimi Murango for the tenantsMbugua for the landlord