Maina v Administrators of the Estate of the Late Bernard Odipo [2025] KEBPRT 150 (KLR)

Maina v Administrators of the Estate of the Late Bernard Odipo (Tribunal Case E989 of 2024) [2025] KEBPRT 150 (KLR) (21 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 150 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E989 of 2024

J Osodo, Chair & Gakuhi Chege, Member

February 21, 2025

Between

David Thairu Maina

Tenant

and

Administrators of the Estate of the Late Bernard Odipo

Landlord

Ruling

A. Dispute Background 1. The tenant/applicant moved this Tribunal vide a reference under Section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, dated 6th September 2024 seeking to challenge the Respondent’s notice to terminate his tenancy dated 9th August 2024.

2. The respondent filed an undated replying affidavit in which she deposes as follows; -i.That together with Anne Christine Adongo, they are the administrators of the estate of the late Benard Peter Odipo who died on 27th April 2019. A copy of the Grant of Letters of Administration is annexed as “FEO-1”.ii.That she is aware that her late husband Benard Peter Odipo (now deceased) entered into a tenancy agreement with the applicant/tenant, Dr. David Thairu Maina who filed a reference after being issued with a notice to terminate his tenancy.iii.That upon becoming administrators of the estate of the late Mr. Odipo, the respondent obtained the file records and documents related to the tenancy agreement which the applicant had entered into in the name of Zenamed Pharmaceutical Limited as a sub-tenant. A copy of the agreement is dated 28th June 2008 and annexed as “FEO-2”.iv.That from the documents obtained from the file of the respondent’s late husband, the parties in BPRT Case No. 381 of 2014 and the late Mr. Odipo recorded that the case be withdrawn by the applicant with an order that he vacates the premises.v.That upon perusal of the tenancy agreement under clause 5, it was specifically agreed that the applicant (Dr. Maina) was not to sublet, transfer or part with the shop or charge any goodwill at the end of the tenancy. That despite this clear term and condition of the agreement, the applicant parted with possession, vacated the premises and let out the same to 3 persons being Mr. Peter Nganga trading as Blets Enterprises Agrovet, Mr. James Kamau trading as City Agro Solutions and M/S Mary Njoki trading as Mary John Shop.vi.That as administrators of the estate of the late Mr. Odipo, it is clear that Dr. Maina decided to rent out the suit premises to third parties at a possibly higher rent for his enrichment and to the disadvantage of the family of the late Mr. Odipo.vii.That sometime in July 2024, KPLC (Kenya Power and Lighting Company) sent the respondent a billing statement for the suit premises which had an unpaid electricity bill of KES. 146,108. 38 and they threatened to disconnect all KPLC power connections in the name of the late Mr. Odipo. A copy of the bill for account number 30100861 is annexed as “FEO-3”.viii.That by a letter dated 17th July 2024, the respondent gave notice to the applicant on account of breach of the agreement and asked for vacant possession. A copy of the letter is annexed as “FEO-4”.ix.That the respondents also gave notices to the sub-tenants. Copies of the letters are annexed as “FEO-5(a), (b), (c).

3. In response to the replying affidavit, the tenant/applicant filed a supplementary affidavit dated 4th November 2024 in which he deposes as follows: -i.That according to the tenancy agreement between him and the late Mr. Benard Peter Odipo, he occupied the subject premises measuring approximately 180sq feet being part of retail shop No. 2 on Plot LR No. 209/4990. ii.That as per the provisions of the agreement, the late Mr. Odipo was referred to as the head tenant and the applicant entered into the agreement as the Sub-tenant.iii.That as the applicant was occupying the suit premises, he paid to the head tenant a total of KES. 785,000 comprising of; 2 months’ rent deposit (KES, 45,000X2=KES. 90,000), goodwill/ security deposit of KES. 650,000 and 1-month’s rent of KES. 45,000. iv.That at the time he occupied the suit premises, he was carrying out a pharmaceuticals business under the name Zenamed Pharmaceuticals. That overtime, he ventured into other businesses which he set up in the same area and employed people to manage them.v.That it is not true that he sublet the suit premises.vi.That as per the terms of the tenancy agreement, the sub-tenant is charged with the responsibility of settling electricity bills. That consequently, the applicant has been paying all electricity bills together with monthly rent as per the terms of the tenancy agreement. Copies of documents showing payment of rent are annexed as “DTM-1”.vii.That the respondent has failed to provide any evidence to show that the applicant has bypassed or tampered with electricity connections as alleged or that he has occasioned high electricity bills to the head tenant.viii.That the reference dated 6th September 2024 ought to be allowed.ix.That in the alternative, the tenant seeks for refund of KES. 740,000 being goodwill paid of KES. 650,000 and rent deposit of KES. 90,000 at the commencement of the tenancy plus interest thereon at court rates.

4. On 5th November, 2024, this court directed that the reference be disposed of by way of written submissions. Both parties complied with the tenant filing his dated 11th December 2024 and the respondent filing hers dated 2nd February 2025. We shall consider both submissions while dealing with the issues for determination.

B. Issues for determination 5. The following are the issues for determination; -a.Whether the reference dated 6th September 2024 ought to be allowed.b.Who shall bear the costs of the reference?

Issue (a) Whether the reference dated 6th September 2024 ought to be allowed. 6. The tenant/applicant filed the instant reference dated 6th September 2024 challenging the respondent’s notice to terminate tenancy dated 9th August 2024.

7. The said notice is based on the grounds that the landlord wants to repossess the premises for personal use, that the applicant has sublet the premises without the landlord’s consent and that the applicant has bypassed the electricity meters.

8. The tenant/applicant in his written submissions avers that the grounds to terminate tenancy stated by the respondent have not been proven.

9. The applicant further states that he has provided Mpesa messages and a cheque written in favor of one Frida Agutu Odipo evidencing payment of rent.

10. The respondent on the other hand submits that the applicant herein filed another Tribunal BPRT Case No. 381 of 2014 but the tenant withdrew the said case with an order that he vacates the suit premises. That the tenant in his supplementary affidavit remained silent on this averment and did not deny that he was ordered to vacate the suit premises.

11. The Tribunal takes cognizance of the tenancy agreement entered into between the late Bernard Peter Odipo and the applicant, which contained an explicit clause prohibiting subletting, transfer, or parting with possession of the premises.

12. The respondent alleges that the tenant violated this clause by subletting the premises to three individuals: Peter Nganga (Blets Enterprises Agrovet), James Kamau (City Agro Solutions), and Mary Njoki (Mary John Shop). This is supported by notices issued to these sub-tenants which are annexed to the respondent’s replying affidavit.

13. The applicant contends that he remains the primary tenant and has not sublet the premises but rather expanded his businesses and employed managers to run them. However, he does not provide documentary evidence demonstrating the specific nature of these businesses or their operation within the suit premises.

14. The Tribunal further notes that the applicant does not refute the alleged order in BPRT Case No. 381 of 2014, both in his affidavit and written submissions, implying an acknowledgment of its existence and effect.

15. Additionally, there is an alleged outstanding electricity bill amounting to KES 146,108. 38, which the respondent argues remains unpaid and threatens disconnection of power to the premises as well as all premises in the name of the late Mr. Odipo. While the tenant claims to have been making payments, no clear evidence has been provided to establish compliance with the obligations under the agreement.

16. We have perused the notice to terminate tenancy issued to the applicant, dated 9th August 2024 and we find that the same is in the form prescribed under Section 4(2) of Cap 301 Laws of Kenya.

17. We also note that one of the grounds stated in the said notice to terminate tenancy is that the respondents would like to have the premises for their own personal use.

18. According to Section 7(1)(g), Cap 301 Laws of Kenya one of the grounds on which the landlord may seek to terminate tenancy is; -“g.subject as hereinafter provided, that on the termination of the tenancy the landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes, or partly for the purposes, of a business to be carried on by him therein, or at his residence.”

19. Under Section 7(1) (c) of Cap 301, a landlord is permitted to terminate a tenancy if the tenant has breached fundamental terms of the tenancy agreement which in this case is the subletting of the suit premises without the landlord’s consent.

20. Section 5 (2) of Cap 301 states thus; -“2. Where a landlord gives a tenancy notice to his tenant, he may at the same time give a similar notice to any person to whom the tenant has sub-let the whole or any part of the premises concerned and thereupon the provisions of this Act shall apply to the sub-tenant, and his sub-tenancy, as if he were the tenant of such landlord.”

21. Based on the aforesaid provision, we find that the notices/letters dated 17th July 2024 issued by the respondent to the sub-tenants are not in the prescribed form under Section 4(2) of Cap 301, Laws of Kenya. The said notices are therefore invalid and illegal.

22. Consequently, we find that the tenant has failed to provide sufficient proof that he remains in lawful occupation of the premises without subletting. We also find that the tenant has not contested the order issued in BPRT Case No. 381 of 2014, which directed him to vacate the suit premises and on the other hand, the respondent has demonstrated justifiable grounds for terminating the tenant’s tenancy.

23. Therefore, we shall order that the reference dated 6th September 2024 be dismissed, and the notice to vacate issued on 9th August 2024 is hereby approved.

Issue (b) Who shall bear the costs of the reference? 24. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of any suit before this tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall award costs to the respondents who have successfully defended the tenant’s claim.

C. Orders 25. In conclusion, the following final orders commend to us; -a.The applicant’s reference dated 6th September 2024 is dismissed.b.The respondent is at liberty to issue the sub-tenants proper notices of termination of tenancy in the prescribed form under Section 4(2) of Cap 301, Laws of Kenya.c.Costs of KES. 25,000 to the respondent.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF FEBRUARY 2025. HON. JOYCE AKINYI OSODO - PANEL CHAIRPERSONHON GAKUHI CHEGE - PANEL MEMBERBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Onyango for Landlord/respondentKabugu for tenant