Mukabane & 2 others v Maina & 2 others [2025] KEBPRT 305 (KLR)

Mukabane & 2 others v Maina & 2 others (Tribunal Case E020 of 2024) [2025] KEBPRT 305 (KLR) (17 June 2025) (Judgment)

Neutral citation: [2025] KEBPRT 305 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E020 of 2024

N Wahome, Chair & Joyce Murigi, Member

June 17, 2025

Between

Aineah Anwa Mukabane

1st Applicant

Patrick Ndingro

2nd Applicant

Joanes Ochieng Olunya

3rd Applicant

and

Naftary Maina

1st Respondent

Mwangi Maina

2nd Respondent

Ivory Homes Care Limited

3rd Respondent

Judgment

1. This Judgement is on the Tenants’ reference dated 8/1/2024 which is anchored on section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering establishments) Act (Cap 301) hereinafter referred “the Act” and complaint thereof was to the effect that ;-“Naftary Maina Mwangi, Mwangi Maina and Ivory Homes Care Limited of Tel No. XXXXXXXXXX, XXXXXXXXXX,andXXXXXXXXXX had blocked our business premises using construction blocks, poles twisted metals and ballast and threatened to evict us contrary to Cap 301 of the laws of Kenya”

2. The reference was filed with a plaint dated 30/7/2024 which in our view was unnecessary as the same is not recognised by the Act. The same sought to have the respondents compelled to allow them complete quiet possession of the demised premises, be directed to repair and make the same habitable and to pay Kshs. 162,500/= for the lost items, lost after the illegal demolition of the premises and a further Kshs. 50,000/= for improvements caused thereon by the Tenants.

3. The Tenants in support of their Case further filed the list of documents dated 30/7/2024 and the documents thereof and the list of witnesses dated 30/7/2024 and the witness statements thereof. The 3 Tenants also testified in court on the 17/3/2025 and eventually their Counsel filed the submissions dated 16/4/2025.

4. The Case for the Tenants is that;-i.They have been tenants at the demised premises since the years 1994,1989 and 1988 respectively.ii.The Tenancy at the premises has been running since 1978 during the life of Mzee Maina the then Landlord and that there has been successive Tenants since then.iii.There was a total of 14 Tenants who started with a rent of Kshs. 3,000/= to the rent of Kshs. 14,000/= charged today.iv.The rent is collected by one Tenant and deposited into the Bank account of the 3rd Respondent and that the rent is mainly collected byTW4, Mr. Joanes Oganyo Gumbav.On or about 24/11/2022, they fell into arrears of Kshs. 4,600/= and that it is the 1st and 2nd Applicants and Mr Joanes Oganyo Gumba who negotiated a payment plan and which they complied with and paid all the rents in arrears-T/Exbt no. 3vi.The Respondents had also recognised them as Tenants in the Landlord Exhibit no.2 among his alleged 12 Tenants.vii.The Tenant witness TW4 Mr. Joanes Oganyo Gumba was a partner in the business and not his Sub-Tenants.viii.The Landlord never gave them any notice to alter the terms of their Tenancies.ix.The improvements they had caused at the premises were with the verbal consent of the Respondents and cost them Kshs. 50,000/=.x.The demolition of the perimeter fence by the Landlord was against the orders of this court and exposed them to losses of Kshs. 162,500/=.xi.The Respondents were in breach of the Act to block them from accessing their respective premises/spacesxii.The Respondents had all through and for years recognised them as their Tenants.xiii.The items stolen were worth Kshs. 162,500/= but could not provide evidence of the purchase of the same as they were old.xiv.They had not preserved the evidence for improvements caused on the premises.

5. On the part of the Respondents and in response to the Tenants’ suit, they filed the replying Affidavit sworn by Naftary Maina on the 15/1/2024, the list of documents dated 25/09/2024 and the documents thereof, the list of witnesses dated 25/09/2024 and the witness statements thereof and finally submissions dated 14/5/2025.

6. The evidence of the Respondents is that;-i.The Applicants were not their Tenants and there was therefore no Tenant and Landlord relationship.ii.Their Tenant was Mr. Joanes Oganyo Gumba and they had not allowed him to sublet the premises.iii.It was Joanes Oganyo Gumba who had entered into a Tenancy agreement with the 3rd Respondent and is the one who was paying rent.iv.They would see the Applicants at the premises doing their businesses therein.v.They had not issued any notice to alter the terms of the Tenancy to either Mr. Joanes Oganyo Gumba or to the Applicants.vi.By the Agreement dated 24/11/2022(Landlords Exhibit no.3), the Applicants had committed to pay the rent arrears then at Kshs. 4,600/= or vacate the premises and which they did not payvii.They had 12 Tenants and gave a list of the sameviii.They had not authorised the Applicants to carry out any developments on the premisesix.Nothing was stolen from the Applicants on demolition of the perimeter wall and the reason they were never charged with any criminal offence.x.They had given the notice to their lawful Tenants to move out to allow for renovations and provided them with an alternative space.xi.The Applicants had no prove of the purported improvements at Kshs. 50,000/= or for the allegedly stolen items at Kshs. 162,500/=.

7. We have perused the pleadings by the parties, the documents annexed and the oral evidence rendered in court and the respective submissions and we are of the view that the issues that arise for determination are the following;-i.Whether the Applicants have proved their case on a balance of probabilitiesii.Who should bear the costs of this suit

8. On whether the Applicants have proved their case on a balance of probabilities, in this, we get guidance from the holding by Justice Luka Kimaru in the case of William Kabogo Gitau Vs George Thuo & 2 others, (2010) 1 KLR 526 where he stated thus;-“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established hiscase on a balance of probabilities. He has established that it is probable than not that the allegations that he made accrued”

9. In determining the Tenants case, we first need to confirm the existence or otherwise of a Landlord/Tenant relationship between the parties. Section 2(1) of the Act is the guide on this, it provides that;- “Controlled Tenancy means a tenancy of a shop, hotel or catering establishment-a.Which has not been reduced into writingb.Which has been reduced into writing and which –i.Is for a period not exceeding five (5) years”

10. The Respondents have not in any way rebutted the assertion that the Applicants were Tenants on the premises since 1994, 1988 and 1989 respectively. There is also no denial that the Kshs. 14,000/= paid as rent includes the contribution by the Applicants. Indeed the TW4 Mr. Joanes Oganyo Gumba testified as much.

11. The 1st Respondent in his list of documents dated 25/9/2024 and in particular exhibit No.1 and 3, he has the Applicants as the Tenants. He has also acknowledged them as his Tenants in his Statement at paragraphs 9,10,12,18, 23 and 24 and also in his evidence in court where in cross examination he stated that;-“The Applicants were my Tenants and were paying me rent. They became a bother to me and I decided to be working with Joanes Oganyo Gumba”

12. There is also no contestation that the Respondents never issued any tenancy notice as envisaged by the Act if at all they wanted to alter any term of the Tenancy which we have confirmed existed. Section 4(2) of the Act provides 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”

13. The form alluded to under section 4(2) of the Act is provided for by Regulation 4(1) of the Regulations to the Act which provides that;-“A notice under Section 4(2) of the Act by a Landlord shall be in form A in the schedule to these Regulations”

14. In rendering a tenancy notice, there is required complete compliance also with Sections 4(4) and 7(1) of the Act. In this case, we doubt that there was such compliance with the Respondents having admitted that the same was verbal. We wish to reiterate that Cap 301 is a piece of legislation that requires strict and complete adherence with its provisions.

15. The court in the case of Manaver N. Alibhai t/a Diani Boutique -vs-South Coast Fitness and Sports Centre Ltd Civil Appeal no. 203 of 1994 on the need to such compliance held that;-“The Act lays down clearly and in detail, the procedure for the termination of a Controlled Tenancy. Section 4(1) of the Act states in very clear language that a controlled Tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the Tenant of, any such Tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the Tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the Landlord to ask the Tenant to notify him in writing whether or not the Tenant agrees to comply with the notice”

16. In our view, the Respondents operated outside the Act in their actions complained about and the Applicants were entitled to seek for this court’s intervention.

17. The Applicants have also sought for damages for purported improvements of the premises at Kshs. 50,000/=. Though the Respondents have not denied that the Tenants erected metal pillars to support the collapsing roof, we cannot understand this claim for reasons that the Tenants intend to remain at the premises. There is also no justification as to why the said cost at Kshs. 50,000/= was never deducted from the rent payable or why it was never demanded before this altercation.

18. In our view, this claim is not justified and must fail in view of section 12(L) of the Act which provides that among the powers of Tribunal is;“To award compensation for any loss incurred by the Tenant on termination of a controlled Tenancy in respect of goodwill and improvements carried out by the Tenant with the Landlord’s consent in writing”

19. The Tenants have also sought for compensation for the items lost after the Respondents demolished the perimeter fence. The Respondents have admitted having caused the demolitions which was obviously in breach of the Act and their actions were not permitted by the Act or this court.

20. The Applicants have also been consistent on the items lost and the attendant costs thereon. This is further exemplified by the report to Kamukunji Police Station vide OB No. 52/9/1/2024 marked as annexure AAM4, the statements of the 4 witnesses for the Tenants and their evidence in court.

21. We appreciate the hallowed maxim on prove of special damages. In the case of Ombete & Ano -vs-Muthuure (Civil Appeal E006 of 2023 (2024) KEHC3377(KLR) the court held that;-“On the award of special damages, it is now firmly established that special damages must not only be specifically pleaded but also strictly proved, before they can be awarded by the court”.

22. In this case however, we are convinced by the consistence of the evidence and documentation filed in court by the Tenants that they indeed lost the items claimed. We also have no reason to doubt that the items had been bought long time ago and it was difficult to avail receipts in evidence of their purchase. We however, also note that the Tenants never availed any evidence to confirm the market value of the items despite their assertion that the same are costing Kshs. 162,500/= in the market today.

23. Therefore, in line with the dictum by Justice Mathews N. Nduma in the case of Pelican Haulage Contractors Ltd -vs- Joel Kinyanjui Kang’ethe (2016) KEELRC (1219) KLR the court held that;-“The court cannot fault this finding by the learned Magistrate. In the case of Geoffrey Omondi and Ano -vs- Emergency Assistance Radio Service Nairobi HCCC No. 340 of 1993 (Waki-J) where it was stated that;-“What amounts to strict proof must of course depend on the circumstances as was stated in Ratcliffe’s case, namely the character of facts producing the damage and the circumstances under which those acts were done and we would include the circumstances which the claimant finds himself operating after say a road accident. If for instance, there would be evidence that following a Road Traffic Accident the claimant was admitted in hospital. That he paid hospital charges but lost receipts issued to him following the Treatment then it would be ,” the vainest pedantry “ to insist that only production of the receipts would constitute strict proof”

24. In this case, the Tenants have testified that the stolen items were old and some had been bought by their predecessors tens of years ago. It would therefore be most unreasonable to expect production of receipts to satisfy strict proof thereof.

25. We would therefore and with further guidance by section 12(4) of the Act award damages to the Tenants at Kshs. 100,000/= for the items lost after the Actions of the Respondents which were in breach of the Act. The section provides that;-“In addition to any other powers, specifically conferred to it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord or the Tenant, and may make such order therein as it deems fit”

26. On the question of who should bear the costs of this suit, we shall be guided by the conventional wisdom of section 12(1) K of the Act and section 27 of the Civil procedure Act and award costs to the successful parties who are the Applicants.

27. In the final analysis the orders that commend to us are the following;-1. That the Applicants shall be allowed complete quiet possession of the demised premises situate on Chiriku lane within Gikomba Market in Nairobi City.2. That the Applicants are awarded compensation at Kshs. 100,000/= for lost/stolen tools of trade.3. That the Applicants are awarded costs at Kshs. 50,000/=Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17thDAY OF JUNE 2025. HON. NDEGWA WAHOME,- (PANEL CHAIRPERSON)MBS HON. JOYCE MURIGI - MEMBERBUSINESS PREMISES RENT TRIBUNAL BPRTDelivered in the presence of:Mr. Odhiambo for the Tenants and Mr Kariuki for the Respondents