Wanjiru v Njoroge [2025] KEBPRT 234 (KLR)

Wanjiru v Njoroge (Tribunal Case E010 of 2025) [2025] KEBPRT 234 (KLR) (24 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 234 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E010 of 2025

CN Mugambi, Chair

April 24, 2025

Between

Lilian Wanjiru

Applicant

and

Virginia Njoroge

Respondent

Ruling

1. The Tenant’s Application dated 17. 01. 2025 seeks orders;-a.That the Respondent be ordered to re-open the suit premises, return the Tenant’s goods to the suit premises and reinstate the Tenant back to the premises forthwith.b.That the Respondent be ordered to return back to the Tenant Kshs. 17,000/= that the Landlady stole from the suit premises.c.That the Respondent be injuncted from in any manner interfering with the Tenant’s peaceful occupation of the suit premises.d.That the Tenant be compensated for loss of business for the period that the business remained locked from 1. 01. 2025 and for the days his employees had worked under threats by the Respondents and in a unconducive environment.

2. The Tenant has sworn an affidavit wherein it has been deponed that he pays a monthly rent of Kshs. 2,000/= and that on 1. 01. 2025, the Respondent locked the suit premises and further on 15. 1.2025, the Respondent and the area chief broke into the suit premises and carted away the Tenant’s goods.

3. The Tenant has also deponed that the Respondent stole Kshs. 17,000/= that was in the suit premises.

4. It is the Tenant’s further deposition that she is not in any rent arrears inspite of which the Respondent has been issuing her with verbal threats to vacate.

5. The Respondent has filed a replying affidavit sworn on (undated) wherein she has confirmed that the Tenant indeed pays Kshs. 2,000/= per month, a reduction from Kshs. 3,000/= per month since the days of Covid-19 pandemic.

6. The Respondent in her affidavit has denied locking the suit premises and further states that the Tenant locked the suit premises and vanished for some time after the Respondent had finished offloading building materials in the premises.

7. The Respondent also depones that they did not break into the premises as the Tenant had agreed to lock it in such a way that the Landlord’s workers would access the same for renovations.

8. The Respondent admits to removing the items found in the shop and to keeping them in safe custody awaiting collection by the Tenant.

9. The Respondent has further denied the allegation by the Tenant that he stole Kshs. 17,000/= belonging to the Tenant.

10. The Respondent depones that he had issued a notice to the Tenants notifying them that he would be renovating the premises in accordance with the requirements of the County Government as the premises was getting flooded.The renovations included the replacement of iron sheets amongst others.

11. The Respondent depones also that currently the suit premises is under repairs and that by the time he took over the premises for renovations, the Tenant had been away and out of business.

12. The Respondent depones that the Tenant is not her Tenant parse as the main Tenant never handed over the shop to the Landlady before letting it out to the Applicant.

13. The Respondent further depones that the notice issued to the Tenants in September 2024 was to enable the Landlady to enter into the premises for renovations.

14. The Respondent has also deponed that she had no intention of evicting the Tenant but only intended to carry out renovations, however, the Tenant may now vacate the suit premises due to his malicious conduct towards the Landlady.

15. The Tenant has filed a further Affidavit wherein she has deponed that the Respondent has admitted to removing her goods from her shop.

16. The Tenant further depones that the Kshs. 17,000/= stolen from her shop was to be utilized to pay a loan the day after the money was stolen.

17. The Tenant has deponed that no other Tenant has vacated the suit premises and no notice for renovations was served upon her.

18. The Tenant who depones that she makes Kshs. 8,000/= per day now wants the court to order the Respondent to return all her goods/tools of trade in good condition and to compensate the Tenant for all the losses she has incurred since she was put out of business.

Analysis and determination 19. The only issue that arises for determination is whether the Tenant is entitled to the prayers sought in her Application.

20. The parties to this dispute have not annexed any written tenancy agreement and I am therefore satisfied that the tenancy between the parties is a controlled tenancy governed by the strict provisions of Cap 301 of the Laws of Kenya.

21. The Tenant’s prayer that the Landlady be ordered to re-open the suit premises and return the Tenant’s tools of trade and reinstatement of the Tenant back into the suit premises is brought on the basis that on 1. 01. 2025 the Landlady locked the suit premises and on 15. 1.2025, the landlady carted away the Tenant’s tools of trade. The Landlady has denied locking the suit premises and alleges that it is the Tenant who vanished after the Landlady offloaded building materials outside the premises. The Tenant has responded to this allegation by deponing that it is the Landlady who locked the premises by placing her padlock on top of the Tenant’s padlock. The Landlady’s position becomes untenable when she depones as follows at paragraph 10 of her replying affidavit;-“That we never broke into her shop for both of us, the Applicant/Tenant had agreed she locks the shop in a way my workers could access the shop and undertake renovations.”

22. The Landlady has not explained the way in which the premises was locked and yet her workers managed to access the same for renovations. Clearly, the Landlady could only have broken into the premises.

23. The Landlady/Respondent has admitted to removing the Tenant’s goods/tools of trade from the shop and having kept them in safe custody awaiting collection by the Tenant (see paragraph 13 of the Respondent’s replying affidavit).

24. I am therefore persuaded and I do find that indeed the landlady broke into the Tenant’s suit premises and removed the Tenant’s goods from the suit premises. In my view, although the Landlady denies evicting the Tenant and/or terminating her tenancy, the actions of the Respondent amounted to an illegal attempt to terminate the tenancy.

25. The Landlady minded of terminating the Applicant’s tenancy or altering the terms thereof in any manner was required to issue a statutory notice to the Tenant to that effect under Section 4(2) of Cap 301 which provides as follows;-“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.”

26. The Respondent did not issue any such notice to the Tenant and any attempts to terminate the tenancy other than in the manner provided for under the Act is an illegality on the party of the Respondent.In this regard, Section 4(1) of Cap 301 provides as follows;-“Notwithstanding the provisions of any other written Law or anything contained in the terms and conditions of a controlled tenancy no such tenancy shall terminate or be terminated and no term or condition in or right or service enjoyed by the tenant of any such tenancy shall be altered otherwise than in accordance with the following provisions of this Act.”

27. The Respondent did not take away the goods of the Tenant in exercise of her rights to levy distress under the provisions of Section 3(1) of Cap 293 of the Laws of Kenya. I therefore do not find any legal justification as to why the Respondent took the law into her own hands and took away the Tenant’s goods. It is therefore my finding that the Respondent’s act of removing the Tenant’s goods from the suit premises was illegal. I reiterate that if, as the Respondent contends, she removed the goods to pave way for renovations, then she ought to have issued the relevant notice to the Tenant which she never did.

28. I have not found any material to support the allegation by the Tenant that Kshs. 17,000/= was stolen from the suit premises neither have I found any material support for the allegation by the Tenant that she was making profits of Kshs. 8,000/= per day and accordingly, these claims are dismissed.

29. I have also not found any basis for the claim by the Tenant that her employees should be paid for working under unconducive circumstances.

Disposition 30. In view of the above findings, I proceed to make the following orders in disposing of this matter:a.That the Respondent is ordered to reopen the suit premises forthwith and unconditionally and reinstate the Tenant back to the premises.b.That the Respondent is hereby ordered to return all the Tenant’s goods/tools of trade to the suit premises at the Landlord’s expense.c.That the Respondent, her agents, servants and/or assigns are hereby restrained from in any manner interfering with the Applicant’s quiet use and possession of the suit premises.d.That the Respondent shall not be paid any rent from 1. 01. 2025 till the time she opens the suit premises.e.That the Respondent will bear the costs of this Application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24THDAY OF APRIL, 2025HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNAL