Mahugu v Kirori [2025] KEBPRT 209 (KLR)

Mahugu v Kirori (Tribunal Case E108 of 2024) [2025] KEBPRT 209 (KLR) (12 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 209 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E108 of 2024

N Wahome, Chair & Joyce Murigi, Member

February 12, 2025

Between

Wilson Muchemi Mahugu

Applicant

and

Stanley Kimondo Kirori

Respondent

Ruling

1. The Tenants/Applicants commenced these proceedings by the References dated the 30. 9.2024. The References simply stated that;-“the Landlord has issued an illegal and irregular eviction notice without orders from the Tribunal.”

2. Further to the References, the Applicants filed the notice of motion Application dated 27. 9.2024 and which sought for the following reliefs;-i.Spentii.That this Honourable Tribunal do order stay of Landlord eviction notice dated 17. 9.2024 issued against the Tenants pending the hearing and determination of this Application.iii.That this Honourable Tribunal do issue an order of prohibition restraining the Landlord/Respondent through himself, his servants or agents from evicting or interfering with the peaceful and quiet possession of the premises by the Tenants/Applicants pending the hearing and determination of this Application.iv.That the costs of this Application be provided for.

3. The main contention by the Applicants in both the References and the Application is that;-a.The eviction notice by the Landlord’s Counsel was illegal and/or irregular as it was not compliant with Cap 301. b.They had not instructed their previous lawyer to withdraw Nyeri ELCA No. E003 of 2023 and were litigating to have the same reinstated.c.The Landlord had been accepting rent despite the orders of the Tribunal terminating the tenancy.d.By accepting rent after the final orders of the Tribunal, a new tenancy was created.

4. On his part, the Landlord responded to the Tenants plea by filing the statement of Grounds of Opposition dated 11. 10. 2024 and thereafter the submissions dated 13. 11. 2024. It is the contention of the Landlord that;-i.He continued to receive rent from the Applicants for reasons that the determination of their respective References were still pending before the Environment & Land Court at Nyeri in ELCA E003/2023 and in compliance to Section 6 of the Act.ii.On withdrawal of the Appeal by the Applicants, their References were finally determined and the Landlord/Tenant relationship ceased to exist.iii.The Landlord issued notices to quit/vacate the demised premises pursuant to this court’s orders issued on the 8. 12. 2022 and declined to receive any further rents.iv.This Tribunal had by its orders of 8. 12. 2022 in consolidated BPRT Case No. 012/2022 already issued vacate orders which were to take effect thirty (30) days of that date.

5. We have perused the parties’ pleadings and the respective submissions and are of the view that the only issue for determination in this matter is whether the Tenants Application dated 27. 7.2024 has any merit and who should bear the costs thereof.

6. Before we delve into the two issues, we opine that a determination of the Application will by implication resolve the References dated 30. 9.2024 and therefore the later shall be resolved in the same terms as the Application herein.

7. There is no contest that by the order of this court in consolidated Case No. E012/2022, the Applicants References which objected to the Landlord’s termination notices dated 21. 12. 2021 were all dismissed and the termination notices were upheld. The court further required the Applicants to deliver vacant possession thereof in thirty (30) days effective the date of 8. 12. 2022.

8. Being dissatisfied with the said order, the Applicants filed ELCA No. E003/2023 before the Environment & Land Court at Nyeri. That Appeal and the attendant Application were withdrawn by the Applicant’s Counsel on their purported instructions and the Landlord was awarded costs thereof.

9. At the time of writing this Ruling, there is no evidence on record that the said Appeal has been reinstated as has been sought by the Applicants in their Application to the Environment & Land Court and dated 3. 10. 2023.

10. Therefore, as matters stand now, there is nothing that stands on the way of the implementation of the orders of this court as issued on the 8. 12. 2022. The orders sought by the Applicants in the present Application are in vacuum and literally have no substantive pleadings on which to rest.In our view, the grant of such orders would have no place in law and would also heavily impact on the interests of the Landlord and we would respectively decline the invitation to issue the same.

11. We appreciate that the Tenants and Landlord relationship was terminated on the 16. 9.2024 on withdrawal of the ELCA Case No. E003/2024 at Nyeri. However, the Landlord is still entitled to mesne profits effective 16. 9.2024 until the Applicants vacate the demised premises.

12. The Applicants have also submitted that the Landlord required to issue termination notices in compliance with Cap 301. We found those submissions completely divorced from the reality which is that the termination notices dated 21. 12. 2021 against all the Applicants and which were upheld by this court on the 8. 12. 2022 only took effect on the 16. 9.2024 on withdrawal of ELCA No. E003/2023 at Nyeri.There was therefore absolutely no requirement on the Landlord to issue fresh termination or eviction notices to the Tenants as this court had already issued the same by its orders of 8. 12. 2022.

13. We would therefore dismiss the Application dated 27. 9.2024 as the same is plainly made in abuse of the processes of this court together with the References of the same date with costs to the Respondent.

14. In the final analysis, the orders that commend to us are the following;-i.That the Tenants/Applicants Application dated 27. 9.2024 are dismissed.ii.That the Applicants/Tenants shall pay all mesne profits that are in arrears immediately and in default, the Landlord is at liberty to levy distress to recover the same at the Tenants/Applicants expense.iii.That the Tenants/Applicants have seven (7) days of the date hereof to vacate the demised premises and in default, be evicted by the use of a licensed auctioneer at their expense.iv.That the Landlord is awarded costs assessed at Kshs. 50,000/=.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF FEBRUARY, 2025. HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSON,HON. JOYCE MURIGI, - MEMBER,BUSINESS PREMISES RENT TRIBUNAL.Delivered in the presence of Mr. Mindo for the Landlord and Mrs. Njeri Magua for the Tenants