Maina v Nure [2025] KEBPRT 318 (KLR) | Controlled Tenancy | Esheria

Maina v Nure [2025] KEBPRT 318 (KLR)

Full Case Text

Maina v Nure (Tribunal Case E240 of 2024) [2025] KEBPRT 318 (KLR) (8 July 2025) (Ruling)

Neutral citation: [2025] KEBPRT 318 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E240 of 2024

N Wahome, Chair & Joyce Murigi, Member

July 8, 2025

Between

Isaac Karimi Maina

Applicant

and

Abdi Nure

Respondent

Ruling

1. This proceedings were originated by the reference dated 24/10/2024. The same is anchored on Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301 hereinafter referred to as “the Act”. In summary the reference sought for the following reliefs,i.That the Landlord be compelled to re-open the business premises and in default the Tenant be allowed to break into the premises and regain quiet possession with the assistance of the OCS Inuka Police Station.ii.That the Landlord be compelled to allow the Tenant quiet possession of the demised premises.iii.That the OCS Inuka Police Station or the local area chief to ensure compliance with orders of this court.iv.The Landlord to bear the costs of the proceedings.

2. Accompanying the reference was the notice of motion of the even date. It also sought for similar reliefs as those in the reference. The Tenant thereafter and in particular on the 27/5/2025 indicated to the court that he would rely on his pleadings on record and requested for a date for Ruling.

3. The case for the Tenant is that:-i.The Landlord issued him with an illegal notice of termination dated 18/9/2024 and which was to take effect on the 18/10/2024- annexture IKM-2. ii.The Landlord had also continued to interfere with his quiet possession of the premises despite the orders of this court in BPRT case No. 354 of 2019 at Mombasa.iii.On the 18/10/2024, the Landlord placed his padlock and further welded the door to the premises annex-IKM-3. iv.He was paying his rent faithfully and on time.v.The Landlord was harassing him with a view to having him vacate the demised premises.

4. In respect to the Tenant’s reference and notice of motion both dated 24/10/2024, the landlord filed the grounds of opposition dated 19/11/2024. The case for the landlord is that:-i.The tenancy herein was not a controlled tenancy as it has run since the year 2014. ii.There existed no landlord and Tenant relationship as the Tenant was no longer in occupation of the premises.iii.The Tenant had filed the present reference and also a separate reference being No. 237 of 2024 without serving the landlord and thus he was not candid with the court.

5. The parties agreed to render oral submissions in canvassing the application herein but eventually the parties left it to the court to render its ruling on consideration of their pleadings on record.

6. We have perused all the parties pleadings and we are of looked at the view that the issues that emerge for consideration are the following:-i.Whether the Tenant’s application dated 24/10/2024 has merit.ii.Whether the landlords grounds of opposition are legitimate.iii.Who should bear the costs of these proceedings.

7. Before we endevour to look into the identified issues, we opine that the issues raised in the notice of motion dated 24/10/2024 are the same issues in the reference of the even date. Therefore a determination on the application shall also resolve the reference.

8. In our view also, it is only prudent that we first deal with the merits of the grounds of objection dated 19/11/2024. The landlord has asserted that the Tenancy herein is not a controlled Tenancy as envisaged under Section 2(1) (b) of the Act and that therefore this court has no jurisdiction to adjudicate over this matter. That the same has subsisted since 2014 and therefore for a period exceeding five (5) years. Section 2(1) of the Act provides that:-“controlled Tenancy” means a tenancy of a shop, hotel or catering establishment-a.Which has not been reduced into writing, orb.Which has not been reduced into writing, and which-i.Is for a period not exceeding five years

9. There is no evidence on record by either the Tenant nor the Landlord that their relationship was ever formalized. From the evidence the same therefore falls squarely under the jurisdiction of this court as envisaged by Section 2(1) (a) of the Act.

10. In our view, the Tenancy herein was a periodic tenancy that continued from mouth to month. This is borne out from the record as rent payment was on a month to month basis. Therefore, in whatever way you look at the parties relationship the same is a controlled tenancy within the jurisdiction of this court.

11. The landlord further asserted that the Tenant/landlord relationship had been terminated effective the 18/10/2024 when he effectively took possession and rented the same to a 3rd party. In our view, the vacant possession of the premises by the landlord was unknown to the law and therefore in breach of the Act and of no effect.

12. Section 2(1) of the Act defines a Tenant as:-“In relation to a tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding and includes a sub-tenant”.We therefore determine that even with the irregular possession of the premises by the landlord, the Tenant remained entitled by law to the premises.

13. We have noted ground 3 of the Landlord’s grounds of opposition and it is our finding that though the filing of two parallel references is tantamount to abuse of the due process of the court, the same has no legal effect to these proceedings nor does it occasion any perceivable prejudice to the landlord.

14. We now turn on the issue of whether the Tenants notice of motion application dated 24/11/2024 is merited. In our view, this issue will be resolved once the legitimacy of the notice of termination dated 18/9/2024 is determined.

15. Section 4(2) of the Act states that:-“A Landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the Tenant, any term or condition in, or right or service enjoyed by the Tenant under such a tenancy, shall give notice in that behalf to the Tenant in the prescribed form”.

16. On the other hand Section 4(4) of the Act provides that:-“No tenancy notice shall take effect until such date, not being less than two (2) months after the receipt thereof by the receiving party, as shall be specified therein”.

17. Further Section 7 (1) of the Act states that:-“Where under Section 4 of this Act served a notice of termination of a controlled tenancy on the Tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice”.

18. Finally on this issue of compliance, Regulation 4(1) of the Regulations to the Act provide that:-“A notice under Section 4(2) of the Act by a landlord shall be in form A in the schedule to these Regulations”.

19. A keen perusal of the purported notice of termination speaks to the reality that it is not in any way compliant with the strict requirements of the act as encapsulated herein above. The same is therefore of no legal effect nor consequence. On the other hand, the landlord has not denied that he forcefully took possession of the demised premises, welded the same up and eventually rented the same out to a 3rd party until this court made orders on 28/10/2024 reversing the situation and reinstating the Tenant into the premises.

20. We would therefore find that the Tenant had the legal standing to approach this court and seek for its intervention. This he did through his application and reference dated 24/10/2024. We would therefore allow the application and also resolve the reference herein in the same terms.

21. On costs, the Tenant is the successful party and we would ordinarily have awarded costs to him. But having noted that the Tenant had also filed BPRT case No. 237/2024, we are inclined to exercise our discretion under Sections 12(1) k of the Act and Section 27 of the civil procedure Act and direct that each party do bear own costs of these proceedings.

22. In the final analysis, the orders that commend to us are the following:-i.That the Tenants application and reference both dated 24/10/2024 are allowed in terms that the Tenant shall be allowed complete quiet possession of the premises.ii.The Tenant is to settle all the rents in arrears in 30 days of the date hereof and in default the landlord is at liberty to levy distress in recovery thereof at the Tenant’s expense.iii.That each party to bear own costs of the suit.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF JULY 2025. HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSONHON. JOYCE MURIGI,- MEMBERBusiness Premises Rent Tribunal. BPRT.Ruling delivered in the presence of Mr. Mathare Counsel for the Landlord and the Tenant present in person.