Orinde v Onyango [2025] KEBPRT 223 (KLR)

Orinde v Onyango (Tribunal Case E053 of 2024) [2025] KEBPRT 223 (KLR) (4 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 223 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E053 of 2024

J Osodo, Chair & Gakuhi Chege, Member

April 4, 2025

Between

Kevin Odhiambo Orinde

Applicant

and

Collins Joseph Omondi Onyango

Respondent

Ruling

A. Dispute background 1. The tenant/applicant moved this tribunal vide a Notice of Motion under a Certificate of Urgency dated 20th October 2024 seeking for the following orders; -i.That the matter be certified urgentii.That interim injunctive orders be issued restraining the respondent and or any other person from proclaiming, attaching and or in any way interfering with the applicant’s items pending determination of the application.iii.That pending the determination of this application, the court issues an order of temporary injunction restraining the respondent from harassing, intimidating, evicting or in any way interfering with the applicant’s peaceful stay at the suit premises known as Vanity Sports situate in Kona lego Kisumu County.iv.That pending hearing and determination of this application, the tenant be at liberty to pay rent as usual to the landlord.v.That the court issues any other orders it may deem fit.vi.That costs of the application be provided for.

2. The tenant/applicant filed a supporting affidavit of even date in which he deposes that he has been a tenant at the premises owned by the Landlord since October 2017. That he has faced constant eviction threats from the landlord despite regularly paying rent. That initially, he paid Kshs 16,000 per month, but this amount was reduced by mutual agreement to Kshs 14,000. However, in September 2024, he fell sick and fell behind on rent for one month.

3. He further deposes that the landlord is attempting to evict him due to personal differences, rather than genuine rental arrears. That he has since settled most of the outstanding rent and continues to make payments. The tenant denies owing any additional arrears and provides evidence of payments made. The affidavit includes annexed documents supporting his claims, such as copies of the eviction notice annexed as “KOO-1” and a letter in response to the said notice, together with evidence of payment records annexed as “KOO-2”.

4. At a court mention on 6th November 2024, the court issued interim orders of injunction against the respondent.

5. The application is opposed vide a replying affidavit dated 11th November 2024 in which the respondent deposes that he issued a tenancy termination notice on 6th September 2024, which was set to take effect on 1st December 2024. He denies any harassment allegations, asserting that no eviction steps have commenced. The landlord further points out that the tenant has not filed any reference with the tribunal to challenge the termination notice. He highlights that the tenant has admitted to defaulting on rent payments and clarifies that he has not refused to accept rent; rather, the tenant has failed to pay on several occasions. Specifically, the tenant defaulted for two months—May 2023 and April 2024—and also exhausted his deposit, which was used to offset outstanding arrears. A copy of the Mpesa statement showing the defaulted months is annexed as “COO-2”.

6. In addition, the landlord deposes that in 2021, the tenant owed KES 76,000 in rent arrears, which led to the issuance of a termination notice, compelling the tenant to clear the arrears. Additionally, the landlord asserts that the premises have remained closed and non-operational for the past six months, with County Government officials suspecting illegal activities at the location. Copies of photographs showing the premises locked as proof are annexed as “COO-4”.

7. Lastly, he deposes that he took out a loan to construct the rental premises, and the tenant’s actions are disrupting his investment and source of livelihood. That at no point did the landlord agree that the tenant pays rent by installments. Loan documentation is annexed as “COO-5”. The landlord states that he intends to use the suit premises to run a grocery and retail shop

8. Later, at a court mention on 17th December 2024, Counsel for the tenant stated that he had been served with the replying affidavit and that he had filed a reference under Section 6 which is dated 15th November 2024.

9. On the same date (17th December 2024), Counsel for the landlord indicated that he did not intend to file any other documents and the court directed that the tenant files his witness statements and documents for hearing of the said reference.

10. Upon perusal of all the documents filed, we note that the tenant did not file his witness statement but instead filed written submissions dated 4th March 2025. We also note that the landlord filed written submissions dated 11th November 2024. We shall consider the written submissions as we deal with the issues for determination.

B. Issues for determination 11. The following are the issues for determination; -a.Whether the notice to terminate tenancy dated 6th September 2024 is validb.Whether the tenant is entitled to the orders sought in the application dated 20th October 2024. c.Who shall bear the costs of the application?

Issue (a) Whether the notice to terminate tenancy dated 6th September 2024 is valid 12. The Landlord has submitted that the notice to terminate tenancy dated 6th September 2024 was duly served upon the tenant and that it was to take effect on 1st December 2024. However, the tenant filed a reference challenging the said notice under Section 6 of the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301, dated 15th November 2024.

13. Section 6 of Cap 301 provides that a tenant who wishes to contest a landlord’s termination notice must file a reference within two months of being served with the notice. In this case, the tenant filed the reference approximately two months after the notice was issued and before the termination date. The tribunal is therefore obligated to consider the merits of the reference before determining the validity of the said termination notice.

14. The termination notice dated 6th September 2024 which is in the prescribed form according to Cap 301 laws of Kenya has listed the following as grounds for termination of tenancy; -i.That the tenant owes arrears of KES. 14,000. ii.That the landlord wants to use the premises for a period exceeding 18 months.

15. The tenant has challenged the above grounds stating that he has settled the arrears substantially save for 1-month arrears which was caused by his sickness.

16. The landlord on the other hand in his replying affidavit has sworn that the applicant is a rent defaulter as in the year 2021, the tenant fell into rent arrears of KES.76,000 forcing the landlord to issue a notice to terminate his tenancy which notice has been annexed. The landlord further deposes that he did not agree to rent payment via installments which is evident according to the annexed Mpesa statement.

17. On the issue of rent payment, the Tribunal finds that the respondent/landlord has produced sufficient proof showing that the tenant herein has defaulted in payment of rent which is an obligation of the tenant.

18. Section 7(1)(b) and (g) provides one of the grounds for termination of tenancy as follows; -“(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.”

19. According to the Act as quoted above, the grounds listed by the landlord to terminate tenancy are valid and the tenant has failed to controvert the evidence.

20. Based on the analysis above, the tribunal finds that the reference by the tenant lacks merit and consequently, the notice to terminate tenancy dated 6th September 2024 is valid and legal.

Issue (b) Whether the tenant is entitled to the orders sought in the application dated 20th October 2024. 21. Having found that the landlord’s notice to terminate the tenancy dated 6th September 2024 is valid, it follows that the tenant’s application dated 20th October 2024 seeking injunctive relief must fail. The tenant sought to restrain the landlord from interfering with his occupation of the premises. However, given that the landlord has issued a valid notice of termination and the tenant has defaulted on rent payments on multiple occasions, there is no legal basis to grant the tenant continued occupation of the premises.

22. The purpose of an injunction is to preserve the rights of a party pending determination of the main dispute. In this case, the main dispute has been determined in favor of the landlord, and therefore, granting an injunctive relief would be contrary to the findings of the tribunal.

23. Consequently, the tribunal finds that the tenant is not entitled to the orders sought in the application dated 20th October 2024. The application is therefore dismissed.

Issue (c) Who shall bear the costs of the application? 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 order costs to the respondent/landlord

C. Orders 25. In conclusion, the following final orders commend to us; -a.The tenant’s reference dated 15th November 2024 is dismissed for lack of merit.b.The landlord’s notice to terminate tenancy dated 6th September 2024 is upheld as valid and legal.c.The tenant’s application dated 20th October 2024 is dismissed.d.The tenant shall vacate the suit premises within thirty (30) days from the date of this ruling, failing which the landlord shall be at liberty to evict the tenant in accordance with the law.e.The costs of the suit assessed at KES. 8,000 shall be borne by the tenant.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4th DAY of APRIL 2025. HON. JOYCE AKINYI OSODOPANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGEPANEL MEMBERIn the presence of:Tenant present in personNo Appearance for landlord