Ramadhan v Muibau [2025] KEBPRT 300 (KLR)

Ramadhan v Muibau (Tribunal Case E074 of 2025) [2025] KEBPRT 300 (KLR) (20 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 300 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E074 of 2025

N Wahome, Chair & Joyce Murigi, Member

May 20, 2025

Between

Nuru Ramadhan

Landlord

and

Francis Kiarie Muibau

Tenant

Ruling

1. This Ruling is on the Landlord/Applicants notice of motion application dated the 26/2/2025. The same is anchored on Article 159 of the Constitution of Kenya, Order 51 of the Civil Procedure Rules, 2010 and Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) hereinafter referred to as “the Act.

2. The reliefs sought in the application are:-i.Spent.ii.That the Tenant be ordered to handover vacant possession of the suit premises and/or be evicted from premises situate on Mombasa/1/MN/11258. iii.That the Landlord be allowed to levy distress to recover rent arrears.iv.That the OCS Nyali Police Station to ensure enforcement of the said orders and ensures that peace prevails.v.That the costs of this application and damages be borne by the Tenant.

3. The Landlord also filed the supplementary Affidavit dated 2/4/2025 which was in answer to the Tenant’s Replying Affidavit dated 2/4/2025. The case for the Landlord is that:-a.He issued a notice of termination dated 30/9/2024 in which he required Tenant to deliver vacant possession as he intended to cause some improvements on the demised premises.b.However, the Tenant agreed to a rent increment from Kshs.15,000/- to Kshs.25,000/- without the intended improvements.c.The Tenant however reneged on the rent increment which was to take effect on the 5/2/2025. d.He now required the vacant possession as he continued to suffer loss of profit without the rent increment.e.The Tenant has been and was non- co-operative.f.The notice of termination was duly served upon the Tenantg.The Tenant was aware of the renovations to be undertaken.

4. The Tenant’s case from his Replying Affidavit sworn on the 13/3/2025 and the submissions dated 9th May 2025 is that:-i.He was never served with the notice of termination dated 30/9/2024. ii.Only saw the notice of termination after he was served with the pleadings herein and there was no evidence of such service by an Affidavit of service.iii.Renovations at the demised premises had already been undertaken long before the filing of the present suit.iv.The reference as filed offends the provisions of Section 6 of the Act.v.He had met his cardinal obligations of paying rent and was not in any rent arrears.vi.Pursuant to an agreement dated 1/2/2024, the rent increment was to take effect after every two years (Annexture FM-3).vii.Had not agreed with the Landlord on any rent increment before the expiry of two years.viii.The application was founded on the wrong provisions of the law thus fatally defective.

5. Having perused the parties pleadings, documents and even the submissions and case law cited, it is in our view that this matter will be determined by only one issue which is whether the landlady had the legal foundation to commence the reference and application herein. We shall also require to consider the question of costs.

6. On whether the landlady had the legal legitimacy to commence these proceedings, we turn to Section 4(2) of the Act which 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”.

7. Upon the issuance of a notice, Section 6 of the Act further gives guidance on how such a notice is to be dealt with. It provides that:-“A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under Section 4(5) of this Act that he does not agree to comply with the Tenancy notice, may before the date upon which such notice is to take effect, refer the matter to a Tribunal, where upon such notice shall be of no effect until and subject to the determination of the reference by the Tribunal.

8. Provided that a Tribunal may, for sufficient reason and on such condition as it may think fit, permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this section”.

9. From the evidence on record, it is apparent that the receiving party in respect of these proceeding in relation to the notice dated 30/9/2024 was the Tenant. It is only the Tenant who had the legitimacy to move this court by invoking Section 6 of the Act. If indeed the landlady was confident that she had issues and had indeed served the notice dated 30/9/2024. She could have realized and appreciated that the said notice took effect on the 1/12/2024.

10. With that reality, the only open option for the landlady was to move a court of competent jurisdiction to deliver vacant possession of Plot No. Mombasa/1/MN/11258 to her, this she has not done. She has instead moved this court from which she ousted its jurisdiction by her aforesaid termination notice dated 30/9/2024.

11. In the Locus Classicus Case of Pritam -vs- Ratilal & Another (1972) EA 560 Madan J had this to say in similar circumstances:-“The Plaintiff as the receiving party, having failed to refer the matter to the tribunal, the notice had effect under Section 10 from the date therein specified to terminate the Tenancy. Did the Tribunal then have jurisdiction to hear and determine the defendant’s complaint filed under Section 12(1) ( e), (f) and 4?. The first question to be decided is whether the defendants were entitled to make a reference to the Tribunal for it could only make an order for eviction on a reference being made to it. The right of making a reference is given under Section 6 only to the receiving party under Section 4(5) that he does not agree to comply with the Tenancy notice. In my opinion the defendant’s not being the receiving party they had no right to refer the matter to the Tribunal neither did the Tribunal have any jurisdiction to hear their reference. The order of the Tribunal being made without jurisdiction, it was a nullity. There could be no appeal against it”.

12. The court in conclusion on the issue held that:-“Also in my opinion in the circumstances of this case the Tribunal could not properly make an order for the recovery of possession under sub-paragraph (e ) first because there was no permissible reference made to it, and secondly because there was no longer in existence a controlled tenancy to give it jurisdiction. There is no escape from these two pre-requisites. The words “whether or not he is a tenant” appearing in this sub-paragraph do not, I think, refer to an ex-tenant whose tenancy has been brought to an end. His case is dealt with and protected by Sections 4 and 6. These words refer I think to a licensee of a tenant whose case they are intended to include”.

13. From the pleadings by the Landlord, it is that the termination notice took effect on the 1/12/2024 though the same is denied by the Tenant. The Tenant’s case is that he only saw the Termination notice dated 30/9/2024 after being served with the pleadings herein. However, from the elucidation herein above, it is unequivocal that Section 6 of the Act is not available to the landlord in the circumstances of this case.

14. We are also of the view that non-compliance with Section 6 of the Act cannot be cured by Article 159 of the constitution. That breach goes to the Law at the very heart and subtraction of these proceedings. In this we agree with the dispositions in the case of Wilson Evans Otieno – vs- The Law Society of Kenya and 2 Others (2011) eKLR Where Justice Musinga J. held that:-“What should the court do in light of the submissions made by the Petitioner that the court is obliged to disregard procedural technicalities in dispensation of justice. I do not agree with the petitioner that the issue of competence of pleadings, and particularly where such incompetence arises from circumstances as in this case, can be termed as procedural technicality. This is a substantive question of law which goes to the root of the matter. The provisions of Article 159(d) of the constitution cannot be relied upon as a panacea for incompetent pleadings”.

10. we would therefore determine that we lack the wherewithal to make any determination on all the other issues raised by the parties. Without jurisdiction these proceedings are halted and no further steps can be taken in regard thereof. It would then follow that the reference and notice of motion application dated 26/2/2025 are struck out.

11. In this conclusion, we find reliance in the case of “The Owners of Motor Vessel “Lilian s” – vs- Caltex Oil (Kenya) Ltd (1989) eKLR Nyarangi JJA held that:-“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court of Law has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings of a court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

12. The Tenant is the successful party and in line with Section 12(1)k of the Act, we award costs to him.

13. In the final analysis, the orders that commend to us are the following:-i.That the reference and notice of motion application both dated 26/2/2025 are struck out for want of jurisdiction.ii.That the Tenant is awarded costs assessed at Kshs.30,000/- to be offset from rent payable.

Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF MAY, 2025. HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of Mr. Simiyu for the Tenant/Respondent and Mr. Ochieng for the Landlord/Applicant.HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.