Wambui v Muchiri [2025] KEBPRT 213 (KLR)

Wambui v Muchiri (Tribunal Case E224 of 2024) [2025] KEBPRT 213 (KLR) (21 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 213 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E224 of 2024

J Osodo, Chair & Gakuhi Chege, Member

March 21, 2025

Between

Elizabeth Wambui

LandLady

and

Peter Muchiri

Tenant

Ruling

A. Dispute Background 1. The landlady/applicant moved this Tribunal vide a Notice of Motion under a Certificate of Urgency dated 7th October 2024 seeking for the following orders; -i.That the application be certified urgent.ii.That the Tenant/Respondent be ordered to give vacant possession of the subject premises in the condition they were before, allowing the Landlady/Applicant to carry out business in the premises.iii.That the tenant be compelled by an order of the tribunal to clear all rent arrears.iv.That pending the hearing and determination of the application, the Tenant/Respondent be restrained by a court order from subletting or making any alterations in the premises without the consent or knowledge of the Landlady.v.That the Officer Commanding Station (O.C.S) Likoni Police Station ensures compliance with the orders.vi.That the costs of the application be borne by the Tenant/Respondent.

2. The application is supported by an affidavit of even date in which the landlady/applicant deposes as follows; -i.That the tenant/respondent has been renting her premises within Likoni in Mombasa County paying a monthly rent of KES. 15,000/-.ii.That the tenant/respondent has failed to give vacant possession despite having been served with notice to terminate tenancy as provided in the Act, which became effective on 1st December 2023 and has never filed reference to the notice. A copy of the said notice is annexed as “EW1”iii.That the tenant/respondent has been irregular in payment of rent and is in rent arrears.iv.That the tenant/respondent intends to sublet the premises without consent or knowledge of the landlady.v.That unless the orders sought are urgently granted, the landlady/applicant is likely to suffer irreparable loss and damage.

3. The application is opposed vide a replying affidavit dated 4th November 2024 in which the tenant deposes as follows; -i.That the application constitutes falsehood and was brought in bad faith because the respondent has never been a tenant to the applicant but she was an agent to Isaac Kiragu, who is the respondent’s landlord.ii.That the applicant was introduced to the respondent by Isaac Kiragu as his agent whereof she has been collecting rent on his behalf.iii.That the alleged pending rent is ready, but the applicant has declined to collect it, and that the tenant is willing to deposit the same in the Tribunal’s account.iv.That the tenant has had quiet possession of the suit property for the past fifteen (15) years, during which he has invested a lot of resources into the property in terms of improvement and renovation to the tune of KES. 820,750/=.v.That since 10th August, 2011, the tenant has had possession of the suit property, and has developed goodwill for the business. That the action of the applicant is malicious and meant to economically deprive the tenant of his livelihood.

4. The tenant filed a further affidavit dated 4th December 2024 in which he provides additional evidence to support his case.

5. The tenant submits receipts and photographs detailing the developments and improvements undertaken on the property, amounting to KES. 1,398,350, including expenses for shelves, counters, lighting, labor, and transport. The receipts and photographs are annexed as “PM 1”.

6. The tenant in his further affidavit argues that the applicant's attempt to evict him is motivated by jealousy and malice, as she allegedly intends to take over the premises for her own business.

7. Furthermore, he contends that the applicant lacks ownership documents, such as a certificate of registration or leasehold certificate, making her application baseless and without merit.

8. The applicant filed a further affidavit dated 6th February 2025 in which she deposes as follows; -i.That the applicant is the Landlady of the suit premises, having purchased the same from Said Yusuf Ali and Mohamed Mohamed Mwabungale who are members of the Likoni Community on 10th May 2004. A copy of the land agreement is annexed as “EW-1”.ii.That the applicant rented the suit premises to Isaac Kariuki on or around 2007, who later vacated and introduced the respondent herein as his servant, whom they entered into a tenancy agreement, allowing the respondent to rent the suit premises.iii.That the respondent has occupied the suit premises for over ten years as a tenant, initially paying rent via Mpesa direct deposit, and later through Mpesa name Samwel Mbugi. A copy of the Mpesa statement is annexed as “EW-2”.iv.That despite multiple reminders, the tenant has failed to pay rent and is in arrears from August 2024 to date.v.That the tenant is misleading the Tribunal by claiming that the applicant refused to collect rent, while in fact, he previously paid rent via Mpesa, a method the applicant has never reversed or declined. That the last recorded rent payment was on 3rd August 2024, covering July 2024 rent. A copy of the statement of account is annexed as “EW-3”.vi.That the tenant did not obtain the applicant’s consent before conducting renovations as required by law. That when the suit premises were rented out, they were in good condition, and he was expected to maintain them. That the alleged renovations mentioned in his affidavits were not part of their agreement.vii.That the Tenant has sublet the premises, altered the property, and is now in the process of selling the premises without the applicant’s permission.

9. At a Court hearing on 6th November 2024, the parties were directed to file and exchange written submissions. Both parties complied with the landlady filing hers dated 7th February 2025 and the tenant filing his dated 24th February 2025. We shall consider both submissions as we deal with the issues for determination.

B. Issues for determination 10. The following are the issues for determination; -a.Whether there exists a landlord/tenant relationship between the parties.b.Whether the notice to terminate tenancy dated 27th March 2024 is valid.c.Whether the applicant is entitled to the orders sought in the application dated 7th October 2024. d.Who shall bear the costs of the application?

Issue (a) Whether there exists a landlord/tenant relationship between the parties. 11. The tenant in his affidavits as well as written submissions states that the applicant herein is not his landlord but rather an agent who has been collecting rent on behalf of one Isaac Kiragu who the tenant claims is his landlord.

12. The applicant on the other hand states in her affidavits as well as her written submissions states that she is the landlady of the suit premises and that she purchased the same from Said Yusuf Ali and Mohamed Mohamed Mwabulange, on 10th May 2004.

13. The applicant further states that she rented the suit premises to Isaac Kariuki who introduced her to the respondent/tenant with whom she entered into a tenancy agreement.

14. We note that the applicant in her further affidavit dated 6th February 2025 has stated that the respondent has been paying rent to her via Mpesa name Samwel Mbugi. We have perused the Mpesa statement attached as evidence of rent payment.

15. This Tribunal’s jurisdiction is conferred by Cap 301, Laws of Kenya. Section 2 (1), thereof defines a tenant and a landlord as follows;“tenant" in relation to a tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding, and includes a sub-tenant”"landlord", in relation to a tenancy, means the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy;”

16. We find that the issue of ownership of the suit premises does not arise as it is not necessary for a landlord to prove ownership of a demised premises under the relevant statute guiding this Tribunal. We find that the tenant has indeed been paying rent to the applicant as evidenced by the Mpesa statements thereby establishing a landlord/tenant relationship between the parties.

Issue (b) Whether the notice to terminate tenancy dated 27th March 2024 is valid. 17. The applicant states that she issued a notice to terminate tenancy dated 27th March 2024 which is in the prescribed format under Cap 301 Laws of Kenya.

18. The tenant in his written submissions states that he is a stranger to the said notice as the same was never served upon him and that he only became aware of it upon service of the instant application.

19. We note that the applicant/landlady in her supporting affidavit states that the said notice was duly served and but there is no filed copy of affidavit of service herein.

20. We have perused all the documents filed by the applicant/landlady and we find that there is no affidavit of service filed to prove that the said notice had been served upon the tenant.

21. Based on lack of proof of service of the notice to terminate tenancy, this tribunal shall declare the said notice invalid.

Issue (c) Whether the applicant is entitled to the orders sought in the application dated 7th October 2024. 22. The landlady/applicant approached the Tribunal seeking orders that the tenant gives vacant possession of the subject premises, that the tenant be compelled to clear all rent arrears and that the tenant be restrained from subletting or making any alterations in the premises without the consent or knowledge of the Landlady.

23. As analyzed above, the Tribunal has found that the notice to terminate tenancy dated 27th March 2024 is invalid therefore the Tribunal shall not grant the orders sought for vacant possession.

24. In regard to rent payment, the applicant has sworn in her affidavits that the tenant is in rent arrears and has attached Mpesa statements as well as a rent account statement to prove the same.

25. In Samuel Kipkrori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) e KLR 12, the court stated in paragraph 9 as follows:“A tenant’s first and main obligation is to pay rent as and when it becomes due, for the landlord has the right to an income from his investment. Why would a tenant allow himself to fall into such huge arrears of rent?”

26. The foregoing case provides sufficient guidance that the landlady is entitled to rent payment from the tenant. The tenant herein has not filed any evidence to prove that he has been paying rent for the period in dispute.

27. Consequently, the Tribunal shall order that the tenant settles the claimed rent arrears owing to the landlady, failure to which the landlady shall be at liberty to recover the same using lawful means.

Issue (d) Who shall bear the costs of the application? 28. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. Each party shall bear their own costs

C. Orders 29. In conclusion the following orders commend to us; -a.The notice to terminate tenancy dated 27th March 2024 is declared invalid.b.The application dated 7th October 2024 is allowed in terms of prayers 3, 4 and 5. c.The tenant shall pay any rent arrears owing to the landlady failure to which the landlady shall be at liberty to recover the same using lawful means.d.The landlady is at liberty to issue a fresh notice to terminate tenancy in accordance with Section 4 (2) of Cap 301 Laws of Kenyae.Each party shall bear own costs of the suit.f.This matter is marked settled in the terms above.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY of MARCH 2025. HON. JOYCE AKINYI OSODOPANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGEPANEL MEMBERIn the presence of:Mrs. Omondi holding brief for Mr. Gathu for Landlady/ApplicantNo Appearance for Tenant.