Kipsetim v Kenei & another [2025] KEBPRT 164 (KLR)

Kipsetim v Kenei & another (Tribunal Case E055 & E090 of 2024 (Consolidated)) [2025] KEBPRT 164 (KLR) (5 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 164 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E055 & E090 of 2024 (Consolidated)

A Muma, Member

March 5, 2025

Between

Joseph Kipsetim

Applicant

and

Caroline Jepkoech Kenei

1st Respondent

Galaczy Ventures Company Ltd

2nd Respondent

Ruling

A. Parties and their Representatives 1. The Applicant, Joseph Kipsetim, is the registered proprietor of the suit premises and hance is the Landlord herein (the “Landlord”).

2. The firm of Mwaita &Co. Advocates represents the Landlord in this matter.

3. The 1st Respondent, Caroline Jepkoech Kenei occupies the suit premises (the “Tenant”).

4. The 1st Respondent has not entered appearance in this matter.

5. The 2nd Respondent, Galaczy Ventures Company Ltd, is an interested party in this matter.

6. The firm of Onyinkwa & Co. Advocates represents the 2nd Respondent in this matter.

B. Dispute Background 7. This matter commenced vide the 2nd Respondent’s Reference in BPRT E055 of 2024 dated 19th April 2024 under section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 in which he opposed a notice to terminate tenancy issued by the landlord herein.

8. On 27th May 2024, the reference was dismissed for want of prosecution.

9. The 2nd Respondent filed a Notice of Motion Application under a certificate of urgency accompanied by an affidavit dated 15th July 2024 in which it sought for the following orders; -i.That there be a temporary injunction prohibiting the Landlord and/or his agents from harassing, threatening and/or evicting the 2nd Respondent pending hearing and determination of the application.ii.That the order issued striking out the 2nd Respondent’s Reference dated 19th April 2024 to be set aside in its entirety.

10. The Landlord vide a Replying Affidavit dated 15th July 2024 opposing the 2nd Respondent’s Application dated 19th April 2024 deposing as follows; -i.That the 2nd Respondent is not a Tenant and is a stranger to the Landlord herein.ii.That the Tenant who occupies the suit premises is one Caroline Jepkoech Kenei with whom he claimed to have an agreement with.iii.That on 26th March 2024, he issued a notice for termination of tenancy to Caroline Jepkoech Keneiiv.That the 2nd Respondent is a legal entity separate from his Tenant Caroline Jepkoech Kenei hence they are distinct and not the same person.v.That upon service of the notice to Caroline Jepkoech Kenei, she failed to respond to the said notice as such the Landlord filed an application vide Tribunal Cause No. E089 of 2024 seeking for eviction of the Tenant from the suit premises.

11. This Honorable Tribunal allowed the application dated 15th July 2024.

12. The Landlord filed a Reference and Notice of Motion Application through a certificate of urgency dated 19th August 2024 in Tribunal Case No. E089 of 2024 alleging as follows;i.That he had served the 1st Respondent with a notice to terminate the tenancy.ii.That the 1st Respondent failed to respond to the notice to terminate the tenancy.iii.That the Tenant continues to illegally occupy the premises and this is causing him great losses and damages as he cannot not proceed with his intended renovations on the said premises.

13. The Tenant was served with the application but failed to enter appearance on the matter.

14. Tribunal Case Number E055 of 2024 was consolidated with Tribunal Case Number E090 of 2024 on 12th September 2024.

C. Landlord’s Claim 15. The Landlord claims that it rented the premises out to the Tenant one Caroline Jepkoech Kenei who is the 1st Respondent in this case. He further claims that the 2nd Respondent who is the interested party in this matter is not a Tenant in the suit premises and that he had only rented the premises to the 1st Respondent.

16. The Landlord further avers that vide his Notice to Terminate or Alter Terms of Tenancy dated 26th March 2024, it notified the Tenant of its intention to terminate the Tenant’s tenancy aforesaid with effect from the 1st June 2024.

17. The ground for termination was that the Landlord intended to undertake repairs and maintenance of the premises and also intended to use the said premises for a period of more than one year. As such, the Landlord required the Tenant to vacate the premises.

18. Additionally, through his further submissions dated 28th January 2025, the landlord submits that there was no landlord-Tenant relationship between him and the interested party in this matter and that the Tenant ‘s business had become a nuisance to other Tenants.

19. The Landlord claims that he be granted the prayers sought in his application

D. Interested Party/2nd Respondent ’s Case 20. The Interested party claims that it is the rightful Tenant in the suit premises and the 1st Respondent who the Landlord claims is the rightful Tenant is the 2nd Respondent’s Director ‘s wife who assisted in running the business in the suit premises.

21. It further claims that the 1st Respondent Caroline Kenei never signed any written agreement with the Landlord herein and that it was the Director who entered into an oral agreement subject to signing of a written agreement.

22. It further contends that it has been paying rent since 2018 which it has attached prove of payment and receipts.

23. Further, it avers that the business conducted in the suit premises has always been liquor business as confirmed by photographs of the suit premises.

24. It further states that it has been maintaining the suit premises in a good state of repairs as evidenced by the photographs attached hence there is no need of repairs

25. It claims that the Termination notice by the landlord should be dismissed as the grounds of termination of the tenancy are not sufficient.

E. Issues for Determination 26. Having carefully perused all the pleadings and evidence presented before this Honourable Tribunal by the parties, it is my respectful finding that the issues for determination are:i.Whether there exists a landlord/Tenant relationship between the landlord and interested party?ii.Whether the notice of termination dated 26th March 2024 is valid?

F. Analysis and Findings a. Whether there exists a landlord/tenancy relationship between the landlord and the interested party. 27. In the case of Republic – vs- Chairperson, Business Premises Rent Tribunal at Nairobi & Another ex-parte Suraj Housing & Properties Limited & 2 others (2016) eKLR the court cited with approval the decision in Pritam – vs- Ratilal and Another (1972) EA 560 as follows: -“As stated in the landlord and Tenant (Shops, Hotels and Catering Establishments) Act itself, it is an Act of Parliament to make provision with respect premises for the protection of Tenants of such premises from eviction or from exploitation and for matters connected there with and incidental thereto. The scheme of this special legislation is to provide extra and special protection for Tenants. A special class of Tenants is created. Therefore, the existence of the relationship of landlord and Tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal otherwise, the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the tribunal has no jurisdiction”

28. On the one hand, the landlord has disputed existence of any tenancy relationship between him and the interested party herein. He has clearly stated that he has never received any rent from the applicant who is accused of being a trespasser on the suit property.

29. On the other hand, the interested party has attached proof through payment rent payment receipts and photographs which clearly shows that the interested party is a Tenant in the suit premises.

30. I am convinced that the applicant has tendered sufficient proof that he is a Tenant in the suit premises. Through the implied conduct of the Landlord, that is by receiving rent from the interested party, it confirms that there exists a Landlord – Tenant relationship between him and the 2nd Respondent.

b. Whether the notice of termination dated 26th March 2024 is valid 31. Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 of the Laws of Kenya (the "Act") provides as follows:“A landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant any term or condition in or service enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form”

32. Section 4(4) of the Act provides that 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.

33. The ground upon which the Landlord seeks to terminate the tenancy on the grounds of wanting to renovate the said premises. Accordingly, Section 7 of the Act clearly stipulates the grounds upon which a Landlord may seek to terminate tenancy. One of the grounds as enshrined in Section 7 (f) of the Act is: -“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."

34. In expounding on the threshold that should be met by a Landlord placing reliance on Section 7(1)(f) of the Act as a ground for termination of tenancy, the High Court in the case of Auto Engineering Ltd Versus M. Gonella & Co. Ltd (1978) eKLR stated as follows: -“…First, it is correct that the wording of section 7(1)(f) is “demolish or reconstruct”, and not merely to effect repairs. The distinction can of course be important; for while mere repairs may not necessarily mean that the landlord needs possession of the premises, an intended demolition or reconstruction of a substantial part of the premises would in all probability be frustrated if the landlord could not obtain possession, and that is why this provision exists.”

35. In the present case, the Landlord issued a Notice to Terminate or Alter Terms of Tenancy dated 26th March 2024. The Notice to Terminate was set to take effect on 1st June 2024, thereby providing the Tenant with the requisite two months' notice as mandated but was not served on the rightful Tenant.

36. In view of the foregoing, the said Notice issued by the Landlord is proper in form and but not in substance.

37. Having considered the foregoing, it is only prudent for this Honourable Tribunal to tackle the primary issue raised in the Notice, being the issue of whether the landlord proved that he had the intention to repair the premises.

38. It is my finding that the reasons for termination on grounds on undertaking repairs is not sufficient as per the case above. The landlord failed to prove the intention to repair the premises and mere repairs do not necessitate eviction of Tenant from the suit premises.

G. Orders 39. In the upshot the Landlord’s Reference and Application dated 19th August 2024 in Tribunal Case Number E090 of 2024 is hereby dismissed on the following terms;i.Interested Party ‘s/2nd Respondent’s Reference in Tribunal Case Number E055 of 2024 dated 19th April 2024 is hereby allowed;ii.The Tenant is hereby allowed to continue enjoying quiet possession of suit premises and continue paying rent as and when it falls due;iii.The Landlord be restrained from evicting the Tenant from the suit premises;iv.Landlord is at liberty to issue a fresh notice to the Interested Party when they are ready with good reasons; andv.Each party to bear its own costs.

HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 5ST DAY OF MARCH 2025In the presence of Nyaboto for the Tenant/IP Chepng’oswo hb for Mwaita for the Landlord.HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNAL