Kitonga v Mwapea [2025] KEBPRT 341 (KLR)

Kitonga v Mwapea (Tribunal Case E244 & E241 of 2024 (Consolidated)) [2025] KEBPRT 341 (KLR) (Civ) (30 June 2025) (Ruling)

Neutral citation: [2025] KEBPRT 341 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E244 & E241 of 2024 (Consolidated)

CN Mugambi, Chair

June 30, 2025

Between

Moses Mungathia Kitonga

Tenant

and

Pascal Mwapea

Landlord

Ruling

1. The Landlord’s notice dated 2. 08. 2024 is brought on the grounds that the Landlord intends to renovate the subject premises and therefore requires vacant possession to carry out the said renovations.

2. The Tenants in opposition to the said notice have filed a Reference to the Tribunal under Section 6 of Cap 301 of the Laws of Kenya.

3. On 26. 5.2025, BPRT Case No. E243/2024 and E241/2024 were consolidated for hearing and suit No. E243/2024 was designated the lead file.

The Landlord’s Case 4. The Landlord testified that by a letter dated 2. 05. 2022, he requested the Tenants to vacate the premises, the Tenants agreed to vacate but later changed their minds as a consequence of which the Landlord served them with the instant notice to vacate. The notice is the one dated 2. 08. 2024.

5. The Tenants opposed the notice to terminate their tenancies by filing their References.

6. It is the Landlord’s case that he wishes to renovate the suit premises which he stated to be in very bad condition and the Landlord further stated that there is currently no business being carried out in the premises.

7. The Landlord finally stated that the Tenants have had sufficient notice since the year 2022.

8. Cross examined by Mr. Moses Mungathia, the Landlord stated that the said Tenant has another business premises next to the suit premises.

9. Cross examined by Mr. Mwiti, the Landlord told the court that the said Tenant has his own business premises and the said Tenant’s wife has a separate business premises.

The Tenant’s case 10. Mr. Moses Mungathia (Tenant) told the court that he had not refused to vacate the suit premises but required a period of two years to vacate as he had paid for the trade licenses for this year [2025]. He also stated that he had a lot of debts to recover from his customers before he could vacate the suit premises. The Tenant also told the court that the premises that the Landlord stated to belong to the Tenant are far away and the other premises belonging to one Ms. Esther have been taken over by the Tenant’s cousin. The Tenant also stated that he had a huge loan to service and he has informed the Landlord that he has been searching for alternative business.

11. The evidence of Mr. David Mwiti (Tenant) is that he requires two years to vacate the suit premises. The Tenant told the court that he has been a Tenant since the year 2003 and that the Landlord has not done any renovations in the suit premises as it is the Tenant who has been carrying out the renovations. The Tenant informed the court that the suit premises was built by himself after the original premises was razed down by a fire. It was the Tenant’s further evidence that the Landlord’s wife supervised the construction of the suit premises while the Tenant provided the building materials. Finally, the Tenant told the court that the suit premises is shared between himself and Mr. Moses Mungathia.

Analysis and determination 12. The only issue that arises for determination is whether the Landlord has established the grounds upon which his notice to terminate tenancy has been brought.

13. It is the Landlord’s evidence that in the year 2022, the parties agreed that the Tenants would vacate the suit premises but the Tenants reneged on the agreement and refused to vacate. I have seen the letter dated 2. 05. 2022. it is signed by the Tenants and the body of the letter/agreement reads as follows;-“Tumekubaliana na hawa wazee kuwa wataniachia kibanda changu hapa stage ya Voi mwezi wa nane.”Loosely translated, the letter reads that;“We have agreed with these gentlemen that they will vacate my shed at the Voi stage in the month of August.”

14. It is when the Tenants refused to vacate the premises that the Landlord decided to serve them with a notice to terminate their tenancies. The Landlord told the court that the suit premises is in a bad state and requires renovations. The Landlord also told the court that the Tenants had their own premises not far from the suit premises. it is instructive that none of the Tenants challenged the Landlord’s evidence that the suit premises were in a bad condition. The Tenants do not oppose the notice on account of the suit premises NOT requiring any renovations, all they ask for is a period of two years to relocate their businesses for the reasons that they have huge loans to service.

15. I do not think that the Tenants demand for a period of two years to vacate the suit premises is reasonable. This is because as early as 2. 05. 2022, they had agreed to vacate the suit premises by August 2022. If indeed they required time to search for new premises, then they have had more than two years to do so. No material has been placed before the Tribunal to show the seriousness of the Tenants to relocate or to get new premises to relocate.

16. There is also evidence that the Tenants actually own their own premises. There is no good reason why the Tenants should not relocate to their premises in order to give the Landlord the opportunity to renovate the suit premises which the Landlord states have no active businesses being carried out therein.

Dispositions 17. In the circumstances of this case, I do find the notice by the Landlord to be merited and consequently, in disposing of this matter, I will make the following orders;-a.That the tenancy between the parties herein is terminated.b.That the Tenants will render vacant possession of the suit premises within the next ninety (90) days from the date of this Ruling failing which the Landlord will be at liberty to forcefully evict the Tenants using a licensed auctioneer.c.The Tenants to clear any outstanding rent arrears up to the time they will vacate the suit premises failing which the Landlord will be at liberty to levy distress for the said rent, if any.d.The Tenants will bear the costs of the Reference.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JUNE 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Mwapea Landlord and Mr. Mungathia the Tenant