Ndwano Capital Limited v Muigai & another & another [2025] KEBPRT 174 (KLR)

Ndwano Capital Limited v Muigai & another & another (Tribunal Case E003 of 2023) [2025] KEBPRT 174 (KLR) (4 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 174 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E003 of 2023

CN Mugambi, Chair

March 4, 2025

Between

Ndwano Capital Limited

Applicant

and

Charles Njuguna Muigai & Minnie Kariuki Njuguna

1st Respondent

Bernadette Njeri Gitimu Kirumba

2nd Respondent

Ruling

1. The Tenant’s Application dated 28. 1.2025 seeks interim orders of injunction restraining the Respondents from in any manner interfering with the Tenant’s tenancy on Land Parcel No. 110/591 along Njathaini Road Muringa Drive Kiambu County. The Tenant has also sought the assistance of the OCS, Kiambu Police Station in the enforcement of the orders sought.

The Tenant’s depositions 2. The Tenant has deponed in its affidavit sworn by M/S Samuel Gichini Wanjiku that it is a sub-tenant of the 1st Respondent to whom it has been paying rent and is not in any rent arrears.

3. The Tenant has deponed that the 2nd Respondent has instructed auctioneers to levy distress for rent it does not owe and that the goods proclaimed in actual fact belong to the Applicant and not the 1st Respondent.

4. It is also deponed by the Applicant that it rented the suit premises by an oral lease agreement in September 2024.

5. The Tenant is therefore apprehensive that its property may be unlawfully and wrongfully attached.

The Landlord/2nd Respondent’s Replying affidavit 6. The 2nd Respondent has deponed in her replying affidavit sworn on 28. 2.2025 that the suit premises was rented out to the 1st Respondent as a dwelling house at a monthly rent of Kshs. 150,000/= for the first year and Kshs. 180,000/= for the 2nd year.

7. The 2nd Respondent depones that after the lease expired and the 1st Respondent failed to vacate the premises and/or pay rent, a rent demand was made to the 1st Respondent who instead of paying the rent filed a suit at the Rent Restriction Tribunal.

8. In the said suit, the 1st Respondent admitted to the Tribunal that she and her family used the suit premises as a family home.

9. It is also deponed by the 2nd Respondent that the 1st Respondent was granted thirty days to pay the rent arrears and a further agreement was mutually reached between the parties on 17. 1.2025 on the mode in which the 1st Respondent would pay the rent.

10. The Respondent further depones that after the 1st Respondent failed to pay the rent, the Rent Restriction Tribunal allowed the 2nd Respondent to levy distress for rent by an order dated 24. 1.2025.

11. That the proclaimed goods indicate that the property has been used for dwelling by the 1st Respondent.

12. The 2nd Respondent further depones that the Applicant is a total stranger to her and has also not attached any sub-lease agreement between themselves and the 1st Respondent and as such cannot prove a Landlord/Tenant relationship.

13. The 2nd Respondent depones that the orders of the Rent Restriction Tribunal have not been set aside and they remain valid.

Analysis and determination 14. The issues that arise for determination in this Application is first and foremost whether the Tribunal has the jurisdiction to hear and determine this Application and if it has, whether the Tenant/Applicant is entitled to the orders sought in its Application.

15. The lease agreement between the 1st Respondent and the 2nd Respondent dated 1. 09. 2022 provides at clause 1 thereof that the suit premises would be for residential purposes and clause 4. 16 of the same lease agreement prohibits the Tenant from subletting the suit premises without the consent in writing of the Landlord.

16. It is this demised premises that the Applicant herein now claims to be a business premises. Besides the Applicant not demonstrating that the 1st Respondent had the written consent of the 2nd Respondent to sublet the premises, there is further no authorization changing the user of the premises from residential to commercial and consequently, the premises do not answer to the description of controlled tenancies under Section 2 of Cap 301. The Business Premises Tribunal has no jurisdiction where the tenancies involve residential houses.

17. The above observation is borne out by the fact that indeed the 1st Respondent(s) filed a suit in the Rent Restriction Tribunal, RRT/E2022/2024 against the 2nd Respondent. In the said suit, the 1st Respondent held out the suit premises as a family dwelling place.

18. I also think that there is some merit in the 2nd Respondent’s allegations that the items proclaimed are indicative of the allegation that the premises are a dwelling house. I have seen the proclamation and the items proclaimed include sofa set, Tv set, carpets, cookers, dining tables and chairs and washing machine amongst other items.

19. From the material placed before the Tribunal, it would appear that the tenancy relationship if any, between the Applicant and the 1st Respondent was not consented to by the 2nd Respondent and even if it was, the premises remained a residential premises.

20. Consequently, it is my finding that the Tribunal does not have the jurisdiction to hear and determine this dispute, the Reference by the Tenant/Applicant is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF MARCH, 2025. HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Gachoka for the Landlord and in the absence of the other parties