Wilfred v Gitau [2025] KEBPRT 161 (KLR)

Wilfred v Gitau (Tribunal Case E1267 of 2024) [2025] KEBPRT 161 (KLR) (14 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 161 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1267 of 2024

N Wahome, Chair & Joyce Murigi, Member

March 14, 2025

Between

Dennis Kariithi Wilfred

Tenant

and

Beatrice Mumbi Gitau

Landlord

Ruling

1. This Ruling is on the Tenant /Applicant notice of motion application dated 18/11. 2024. We however note that suits before this court are commenced by either through a complaint/reference under section 12(4) of (Shops, Hotels and Catering establishments) Act (Cap 301) hereinafter referred to as “the Act” or by way of a reference under section 6 of the said Act.

2. Section 12(4) of the Act provides that;-“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the Tenant, and may make such order thereon as it deems fit”

3. Section 6(1) of the Act on the other hand provides that;-“(1)A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of the 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 whereupon such notice shall be of no effect until, and subject to, the determination of the reference by the Tribunal provided that a Tribunal may for sufficient reason and on such conditions 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(2)A Tribunal to which a reference is made shall, within seven days after the receipt thereof, give notice of such reference to the requesting party concerned”

4. We further take cognisance of Regulation 5 of the Regulations to the Act which provides that;“Reference to the Tribunal under section 6(1) or section 12(4) of the Act shall be in forms (B) and (C) in the schedule of these Regulations”

5. From the record, it is plain clear that there is no foundation laid in this claim on which the notice of motion Application dated 18/11/2024 could stand. It then follows that the said motion is for striking out as it lacks any legitimacy to remain in this court’s records.

6. In this, we find reliance on Section 19 of the Civil Procedure Act Cap 21 which provides that;-“Every suit shall be instituted by way of plaint or in in such manner as may be prescribed. As a general rule, a suit can only be instituted by way of a plaint, petition or an originating summons.”

5. This court, the Act and the regulations thereof are categorical and have prescribed that any and every suit must be commenced by way of a reference under either Section 6(1) or 12(4) of the Act and Regulation 5 of the Regulations to the Act has indeed provided the template for such filing. These otherwise mandatory requirements were never complied with by the Tenant in approaching this court.

6. In the case of; Photo Energy Limited -Vs- Hashi Energy Ltd Misc 180 of 2018, the court stated as follows;-“Order 3 Rule (i) and (II) of the Civil Procedure Rules provides that every suit shall be instituted by way of a plaint. As a general Rule, a suit can only be instituted by way of a plaint, petition or originating summons. A notice of motion is not legally recognised as an originating process. A notice of motion can only be filed within a properly instituted suit. The Applicants failed to file any originating process in this matter. We find that the attempt to institute this suit by way of a notice of motion renders the entire suit defective”

5. In view of all the above, we would strike out the notice of motion Application dated 18/11/2024 and all subsequent orders issued thereof.

6. We would also abide by the conventional wisdom of Section 27 of the Civil Procedure Act and award costs to the landlady.

7. In the final analysis, the orders that commend to us are the following;-a.That the Notice of motion application dated 18/11/2024 is struck out together with all subsequent orders issued thereofb.That the Tenant shall pay to the landlady costs assessed at Kshs 10,000/=Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MARCH 2025. HON. NDEGWA WAHOME, MBS - (PANEL CHAIRPERSON)HON. JOYCE MURIGI - (MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of:M/S Mbira for the Applicant/TenantMr. Gitahi for the Landlord/Respondents