Mutimbah v Fujo [2025] KEBPRT 215 (KLR)

Mutimbah v Fujo (Tribunal Case E273 of 2024) [2025] KEBPRT 215 (KLR) (Civ) (21 March 2025) (Judgment)

Neutral citation: [2025] KEBPRT 215 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E273 of 2024

J Osodo, Chair & Gakuhi Chege, Member

March 21, 2025

Between

Mary Mutimbah

Applicant

and

Domtilah Ndila Fujo

Respondent

Judgment

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 26th November 2024 seeking to challenge the landlord’s notice to terminate her tenancy dated 24th September 2024.

2. In response to the tenant’s reference opposing the notice to terminate the tenancy, the landlord filed a supplementary affidavit dated 9th December 2024 in which the landlord deposes that the tenant was served with the said notice on 24th September, 2024, to vacate the suit premises by 1st December, 2024, due to default in rent payment for two consecutive months and the landlord's intention to use the premises for personal activities.

3. The landlord has also sworn that the tenant has a history of irregular rent payments and owes KES. 3,000 in arrears. The landlord seeks for an order from the tribunal to uphold the termination notice, compel the tenant to vacate, and enforce compliance through law enforcement if necessary.

4. Additionally, the landlord requests the Tribunal to dismiss the tenant’s opposition and grant costs of the reference to her.

5. The tenant filed a replying affidavit dated 23rd December 2024 in which she deposes as follows;i.That she has been conducting business on the premises for over ten years and solely depends on it for her livelihood.ii.That the landlord's allegations of irregular rent payments are false and that she has been fulfilling her obligations as per the tenancy agreement and has no rent arrears.iii.That the termination notice dated 24th November, 2024, will cause her financial distress since she took a bank loan to operate her business.iv.That the tribunal ought to allow her at least two more years to repay the loan while continuing her business or have the landlord compensate her for the disruption.v.That the termination notice be dismissed with costs.

6. The landlord filed a further affidavit dated 24th January 2025 in which the landlord deposes as follows; -i.That the tenant's claims are misleading in that she has followed the due process in issuing the said termination notice.ii.That the tenant has failed to pay rent for multiple months, accumulating arrears of Ksh 15,000. iii.That the tenant's request for a two-year extension to repay her bank loan is unreasonable, as she has already stayed on the premises for over ten years.iv.That the tribunal ought to uphold the termination notice and compel the tenant to vacate, with the Officer Commanding Makupa Police Station or the area chief ensuring compliance.

7. At a court hearing on 17th December 2024, the parties were directed to file and exchange witnesses’ statements in support of their respective cases. However, only the affidavits enumerated above have been filed in this case.

8. We shall consider the affidavits as the parties’ evidence as we deal with the issues for determination.

B. Issues for Determination 9. The following are the issues for determination; -a.Whether the tenant’s reference dated 26th November 2024 is valid.b.Who shall bear the costs of the reference?

Issue (a) Whether the tenant’s reference dated 26th November 2024 is valid. 10. The tenant moved the Tribunal under Section 6 of Cap 301, challenging the landlord’s notice to terminate tenancy. The landlord issued a termination notice dated 24th September 2024, requiring the tenant to vacate by 1st December 2024. The tenant filed the reference on 26th November 2024, which falls within the legally prescribed period of one month under Section 6(1) of Cap 301. We therefore find that the reference is validly before the Tribunal.

11. We have examined the affidavits presented by both parties and it is to be noted that the tenant has occupied the premises for over ten years. Despite her claims of compliance with rent obligations, the landlord has deposed that the tenant has accumulated rent arrears of Ksh 15,000.

12. The tenant in her replying affidavit dated 23rd December 2024 has sworn that she has been paying her rent whenever the same falls due but has not filed any evidence to prove that she has been paying rent for the period stated by the landlord. It is trite law that “he who alleges must prove”.

13. Section 7, 1(b) and (g) of Cap 301, Laws of Kenya states thus; -“7. Grounds on which landlord may seek to terminate tenancy (1) 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—

(1) 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—(b) that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;... (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.”

14. As quoted above, persistent non-payment of rent is a valid ground for termination. Furthermore, the landlord has stated an intention to use the premises for personal activities, which is also a recognized ground for termination under the Act as quoted above.

15. Given the above considerations, the Tribunal finds that the landlord has followed the due process in issuing the termination notice and has provided sufficient grounds for the termination. Therefore, the reference by the tenant opposing the termination notice lacks merit and is hereby dismissed.

Issue (b) Who shall bear the costs of the reference? 16. 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. Since the tenant's reference has been dismissed, the landlord is entitled to costs incurred in defending the matter.

C. Orders 17. In conclusion, the following final orders commend to us; -a.The tenant’s reference dated 26th November 2024 is dismissed.b.The landlord’s termination notice dated 24th September 2024 is approved.c.The tenant is ordered to vacate the premises within thirty (30) days from the date of this judgment and in default thereof shall be forcibly evicted therefrom by use of lawful means.d.The Officer Commanding Makupa Police Station and/or the area chief shall ensure compliance with this order if necessary.e.Costs of KES. 10,000 to the landlord.It is so ordered.

JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MARCH 2025. HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE(PANEL MEMBER)In the presence of:Landlord present-in-personTenant present-in-person