Mahugu v Ndumia [2025] KEBPRT 266 (KLR)

Mahugu v Ndumia (Tribunal Case E1400 of 2024) [2025] KEBPRT 266 (KLR) (28 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 266 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1400 of 2024

A Muma, Member

April 28, 2025

Between

Joseph Peter Gituru Mahugu

Tenant

and

Carolyne Wangari Ndumia

Landlord

Ruling

A. Parties and their Representatives 1. The Applicant, Joseph Peter Gituru Mahugu,(hereinafter the “Tenant”), occupies the suit premises within Kitengela Town, along Rontech/Deliverance Road in Kajiado County.

2. The firm of Kiama Wachanga & Company Advocates represents the Tenant in this matter.

3. The Respondent, Carolyne Wangari Ndumia is the proprietor of the suit premises. (the “Landlady”).

4. The Landlady appears in person in this matter.

B. Dispute Background 5. The Tenant moved this Honorable Tribunal vide a Reference dated 18th December 2024 and Application dated 20th December 2024. The Landlord sought, inter alia, the following Orders from this Honorable Tribunal:i.That the Landlord/Respondent and/or her servants and/or employees and/or agents are hereby prohibited from unlawfully intercepting/harassing, intimidating and/or evicting, closing/threatening/interfering/tampering, demolishing, disconnecting power supply, water supply, disposing by and/or in any manner whatsoever with Applicant’s quiet occupation and lawful occupation of the suit premises at Kitengelaii.That the Tribunal do issue an order for the maintenance of status quo in terms of rent payable of kshs. 25,000 pending hearing and determination of the application.

6. In opposition to the Tenant’s Reference Application, the Landlady filed a Replying Affidavit dated 8th January 2025.

C. Tenant’s Claim 7. The Tenant vide his Application dated 20th December 2024 and Further Affidavit dated 20th March 2025 contends that the landlady intends to evict him from the suit premises and that he has spent a lot of money in improving the Landlady’s building and would wish to be compensated before he vacates the premises.

8. The Tenant avers that he is not been in arrears of kshs 273,000 as claimed by the landlady and that the Landlady acknowledges the same.

9. He claims that he did back filling and compartment at the pool area veranda and set up semi-permanent roof structure at his cost and prays for compensation for the renovations.

D. Landlady’s Case 10. The Landlady vide her Replying Affidavit dated 8th January 2025 and Further Submissions dated 25th February 2025, contends that the Tenant was duly served with Notice of Termination of Tenancy in the prescribed form on 30th October 2024, which was to take effect on 1st January 2025 and that he wants to renovate the said premises and convert it to personal use after renovation.

11. The Landlady further submits that the Applicant failed to file the Reference as prescribed under section 6(1) (2) of the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act, Cap 301 Laws of Kenya in opposition to the termination notice dated 30th October 2024 therefore she is entitled to her right to vacant possession.

E. Issues for Determination 12. Having carefully perused all the pleadings and evidence presented before this Honourable Tribunal by the parties, it is my respectful finding that the sole issue for determination is:Whether the Termination Notice dated 30th October 2025 was valid?

F. Analysis and Findings Whether the Termination Notice dated 30th October 2025 is valid 13. 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”

14. 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.

15. I have looked at the Landlady’s notice to terminate tenancy and I am satisfied that it complies with all the requirements of section 4(2) 4(4) and 4(5) of Cap 301 of the Laws of Kenya.

16. Moreover, Section 7 of the Act outlines the grounds under which a landlord may seek to terminate a tenancy upon service of a valid notice of termination. The ground upon which the Landlady seeks to terminate the tenancy is expressed in the notice as “the Landlords intend to renovate and upgrade the building and cannot possibly do so without first obtaining vacant possession.”

17. A Landlord can terminate a tenancy under section 7 (1) (f) Cap 301 on the ground;“That on 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 works of construction on such premises or part thereof and that he could not reasonably do so without obtaining possession of such premises.”

18. In this case the Landlady has not however in support of his notice to terminate the tenancy filed any documents supporting the renovations claimed.

19. Further, section 4(5) of Cap 301 provides that;“A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing within one month after the date of receipt of the notice whether or not he agrees to comply with the notice.”

20. In this case, the termination notice was issued on 30th October 2024 but the Tenant only filed a reference on 18th December 2024 which is a period past the one month stipulated under section4(5) of the Act which the Tenant is required notify the Landlord in writing.

21. Section 10 of cap 301, Laws of Kenya provides as follows:“Where a landlord has served a notice in accordance with the requirements of Section 4 of this Act, on a tenant and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice or to refer the matter to a Tribunal, then subject to Section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy or terminate or alter the terms and conditions thereof or the rights or services enjoyed thereunder”.

22. In the case of Saheb v Hassanally (1981) eKLR at page 4-5, the court of appeal had the following to state: -“In my opinion, it is clear that under Section 10, if a valid notice is not referred, the Landlord is entitled to possession without having to prove any of the statutory grounds relied upon in the notice. To be valid a tenancy notice must comply with the provisions of Section 4, including the requirements of the use of the prescribed form of setting out the statutory grounds for relief and of due notice. The learned judge was wrong in this case to investigate the grounds relied upon in the notice, but even then, he should have given judgement for the appellant on the ground that was conceded namely that the landlord required the occupation of the premises for the purposes of his business (Section 7(1) (g). The learned Judge was in error in not awarding possession of the premises to the appellant in accordance with Section 10, without making any inquiry into the validity of the grounds relied upon”.

23. Guided by the foregoing decision, I am not required to interrogate whether the tenancy notice was justified as that is not an issue for this court as the reference was not filed on time.

G. Orders 24. In the upshot the Tenant’s Reference dated 18th December 2024 and Application dated 20th December 2024 are hereby allowed in the following terms:a.The tenant’s complaint and Application dated 20th December 2024 are hereby dismissed.b.The tenancy notice dated 30th October 2024 took effect on 1st January 2025 under Section 10 of cap 301, Laws of Kenya and the tenant ought to comply therewith.c.The tenant is given 30 days to look for alternative business premises.

HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, delivered and signed at Nairobi on this 28th day of April 2025 in the presence of Kiama for the Tenant/Applicant and NA For the Landlady.HON A. MUMAMEMBER