Mutuku t/a Diani Data Tour & Travel Agent v Restos Estates Limited (Tribunal Case E189 of 2023) [2025] KEBPRT 206 (KLR) (28 March 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 206 (KLR)
Republic of Kenya
Tribunal Case E189 of 2023
CN Mugambi, Chair
March 28, 2025
Between
Bruce Mutie Mutuku t/a Diani Data Tour & Travel Agent
Tenant
and
Restos Estates Limited
Landlord
Ruling
1.On 16.10.2024, Mr. Omwenga and Mr. Otieno appeared for the Tenant and Landlord respectively in this matter. Mr. Omwenga confirmed that he had seen the inspection report by the Rent Inspector and the report indicated that there was a new Tenant in the suit premises. Mr. Omwenga submitted that the court had not issued any eviction orders and the court ought to do something in view of the illegal conduct on the part of the Respondent. Mr. Otieno on his part submitted that the Tribunal’s jurisdiction had ceased to be in this matter.
2.The court reserved its Ruling/directions in view of the fact that jurisdiction had been challenged.
3.Going back on the record, I do note that on 18.7.2024, the parties recorded the following consent;-a.The Complaint in File No. E143/2023 is spent by virtue of the Ruling delivered on 7.6.2024.b.The Complaint in File No. E189/2023 is alive and will proceed to full hearing.c.Parties to comply with order 11 within thirty days.d.The matter will proceed virtually on 21.8.2024.e.A Rent Inspector to visit the premises and file a report on the status of the premises.
4.On 21.8.2024, Mr. Otieno appeared in court holding brief for Mr. Obonyo for the Landlord. He informed the court that Mr. Obonyo was unwell and requested for fourteen days to arrange for the visitation of the suit premises.
5.I have now had the advantage of seeing and perusing the inspection report dated 13.9.2024 and note the following;-a.That upon inspection of the suit premises, the inspection noted that there is a new Tenant who has been in the suit premises since December 2023.b.That the Tenant/Applicant in this case told the Rent Inspector that he left the premises locked sometime last year (2023) and that he had his tools of trade inside.c.The Inspector concluded his report by stating that the premises are operational under the occupation of a new Tenant.
4.The findings of the inspection are supported by the Tenant’s own Reference to the Tribunal dated 7.8.2023 wherein the Tenant was seeking orders from the court for the Landlord to open the suit premises.
5.The Tenant filed an Application dated 7.8.2023 wherein he was granted the following orders;-(a)That the Application is certified as urgent.(b)That the Landlord do open forthwith the Tenant/Applicant’s business premises until this matter is heard and determined.(c)That the Landlord Restos Estate Kenya Limited itself, employees, servants and/or agents be restrained from evicting and/or interfering with the Tenant’s smooth running of the Applicant’s business pending inter partes hearing on 22.8.2023.(d)The OCS Diani Police Station to ensure compliance.
6.While the above orders were pending, parties appeared before court on 19.10.2023 (Hon. Makori) where the court record indicates;(a)Mr. Mutuku is not in the premises.(b)This matter has considerable history before Hon. Mugambi.(c)I therefore discharge all orders given before and order that the status quo be maintained as at 19.10.2023.(d)Matter be mentioned on 30.10.2023 before Hon. Mugambi for directions.
7.It is clear therefore that the Tenant is out of the suit premises. what the report does not explain is how the Tenant was removed out of the suit premises while the orders of 7.8.2023 were still in place. My view of the matter is that the Tenant who has not admitted to voluntarily vacating the premises could only have been illegally evicted and his tenancy illegally terminated and he is at liberty to seek appropriate remedies in a civil court.
8.The Tenant is no longer a tenant of the Respondent in the suit premises having been removed in the unclear circumstances set out above. There is already another Tenant in the suit premises who from the inspection report took possession of the suit premises in the year 2023 in December or thereabouts. Consequently, there being no Landlord and Tenant relationship between the parties, the Tribunal no longer has jurisdiction in this matter and the same is struck out for want of jurisdiction. Each party will bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF MARCH, 2025.HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Ms. Wanjiku holding brief for Mr. Obonyo for the Respondent and Ms. Oduk holding brief for Mr. Omwenga for the Tenant