Omonya v Mandala (Tribunal Case E170 of 2024) [2025] KEBPRT 254 (KLR) (Civ) (28 April 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 254 (KLR)
Republic of Kenya
Tribunal Case E170 of 2024
P Kitur, Member
April 28, 2025
Between
Rabecca Omonya
Tenant
and
Benard Mandala
Landlord
Ruling
A. Parties.
1.The Tenant is a businessperson operating a wine and spirits shop within the premises located at Sikata, Kanduyi in Bungoma County (hereinafter referred to as the ‘suit premises’)
2.The Tenant acts in person.
3.The Landlord is the Agent and successor of one David Akey Mandala (deceased) who was registered proprietor of the suit premises.
4.The firm of Kalama J.N Law Advocates represents the Landlord.
B. The Dispute Background.
5.This tribunal is seized of a dispute arising from a tenant’s allegation that her landlord unlawfully closed her business premises without prior notice. Feeling aggrieved, the Tenant filed an application dated 18th September 2024 seeking the following orders:-i.Spent.ii.An interim restraining order be issued to prevent the respondent from proceeding with the eviction until the tribunal has fully considered the application.iii.An order directing the landlord to open the premises, as the tenant stands to incur significant losses from not being able to operate the business.iv.An order permitting the court to direct a break in to the premises to allow the tenant access to her business.v.That the Officer Commanding Station (OCS) Bungoma Police Station be directed to confirm compliance with these orders.
6.The application is founded on allegations that the landlord unlawfully closed the tenant’s business premises without providing prior notice. Upon consideration, the court issued the following orders; The landlord is restrained from evicting the tenant pending the hearing of the application inter partes and is directed to reopen the premises to prevent the tenant from incurring further financial losses due to the closure of business. In the event of non-compliance by the landlord, the tenant is permitted to break into the premises as a means of enforcing the orders.
7.In response, the landlord filed a replying affidavit sworn on 11th October 2024 by Bernard Mandala, disputing the claims. The landlord asserted that he had been wrongly sued, stating that the tenant had vacated the premises prior to the occupation by a new tenant, thereby rendering the case moot.
8.Subsequently, the landlord filed an application dated 14th November 2024 seeking to stay or set aside the ex parte orders issued by the court. The landlord prayed for the following reliefs; The tenant be restrained from proceeding with any break-in or re-entry into the suit premises or evicting the current occupant pending the inter partes hearing of the application. The current tenant be granted quiet occupation and use of the premises without interference from the tenant herein or the police, with police assistance to ensure compliance.
9.The landlord contended that he had been deprived of the opportunity to be heard during the hearing of the tenant’s application. He further argued that the orders issued were impractical, given the premises were already under a new tenant’s occupation, potentially causing disturbances.
10.During the proceedings on 27th November 2024, The tenant stated that the premises had been closed by the landlord since 29th July 2024, which left her unable to operate due to illness and owing rent arrears of two months. She alleged the landlord’s deliberate inaction regarding collapsed structures and further claimed that the landlord removed the door on the day after the service of her application, resulting in loss of property. The landlord maintained that the tenant vacated the premises willingly and that a new tenant had been in occupation since July 2024.
11.During the proceedings on 18th March 2025, the tenant alleged non-compliance by the landlord, asserting that his actions continued to deny her access to the premises through intimidation tactics. As a result, the tenant prayed for compensation for the losses incurred and expressed her desire to vacate the premises due to her deteriorating health condition.
12.The court directed both parties to submit written submissions regarding the two applications, in addition to filing further affidavits as required. The court also instructed adherence to the previous orders issued on 20th September 2024.
Submissions by Parties
13.The tenant argued that her eviction was conducted unlawfully, without regard to the procedures prescribed by Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 (the Act). She maintained that the landlord was duly served with the application but deliberately ignored the court process. She accused the landlord of contempt of court orders, citing failure to reopen the premises and leasing the property to a third party. The tenant prayed for the dismissal of the landlord’s application.
14.The Landlord contended that the court granted ex parte orders without providing an opportunity for him to be heard. He explained that his failure to attend court was inadvertent as the matter was not cause-listed. He alleged that the tenant vacated the premises with outstanding arrears before a new tenant took possession, thus complicating the enforcement of the orders. The landlord further accused the tenant of misrepresenting facts by claiming unlawful eviction while she willingly left the premises. He prayed for the tenant’s damages claim to be dismissed, as the request had not been included in the initial application.
15.I have carefully read through the submissions by both parties as well as the legal authorities cited and shall make appropriate reference to them in the analysis of this ruling.
C. List Of Issues For Determination.
16.Having reviewed the pleadings and submissions of the parties, I am if the view that the following issues arise for determination:-i.Whether the tribunal has jurisdiction to entertain this matter, given the tenant is not in occupation of the premises.ii.Whether the tenant’s application is meritorious.iii.Whether the landlord’s application warrants relief in the context of procedural irregularities.
D. Analysis And Findings
17.The jurisdiction of this Tribunal is conferred under Section 12(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301. This section grants the Tribunal authority to determine disputes involving controlled tenancies, particularly in matters involving termination of tenancy, rent disputes, and unlawful evictions. Therefore, the primary inquiry is whether the dispute at hand falls within the ambit of a controlled tenancy and whether the Tribunal can proceed in view of the Tenant's alleged non-occupation.
18.The Landlord alludes that the Tribunal lacks jurisdiction on grounds that the Tenant vacated the premises prior to the institution of these proceedings, implying that no landlord-tenant relationship existed at the material time. However, this assertion is fundamentally a matter of fact rather than law. Jurisdiction is not divested simply because one party alleges the relationship has ended. Rather, jurisdiction attaches based on whether a controlled tenancy existed at the time the dispute arose.
19.In the present case, the Tenant alleges that the Landlord unlawfully locked her out on or around 29th July 2024, while she was still a sitting tenant. She further states that she was unwell and had accrued rent arrears but had not received any statutory notice to vacate. These are not allegations of voluntary vacating, but of constructive eviction — a serious claim that falls squarely within the Tribunal’s purview. In such a context, it is the lawfulness of the lockout that becomes central to the dispute, not merely the question of physical presence at the time of filing.
20.As such, the Tribunal finds that it has proper jurisdiction to hear and determine the dispute. Jurisdiction cannot be ousted by unilateral actions of the Landlord or by factual controversies that require evidence to resolve. The Tribunal must first assess whether a controlled tenancy was terminated in accordance with the law.
Whether the Tenant’s Application is Meritorious
21.The Tenant seeks redress for what she describes as an unlawful eviction without prior notice, in contravention of the procedures prescribed under the Act. Specifically, Section 4(2) of the Act mandates that no landlord shall terminate a controlled tenancy without first issuing a notice of termination in the prescribed form, followed by due process either by consent or through a reference to the Tribunal if opposed.
22.The Landlord does not dispute that no such notice was issued. Instead, he contends that the Tenant vacated voluntarily, leaving behind arrears, and that a new tenant had already taken possession. This response, while significant, does not absolve the Landlord of procedural accountability. The absence of a statutory notice is fatal to the Landlord’s position. Even where a tenant is in arrears or has defaulted in obligations, the proper remedy is not self-help through unlawful eviction, but recourse to the Tribunal through appropriate channels.
23.The Tribunal is particularly concerned that its interim orders, issued on 20th September 2024, were not complied with. The Tenant alleges, and the Landlord does not convincingly rebut, that following service of the application, the Landlord proceeded to remove the door to the premises, thereby preventing any possibility of access and potentially facilitating re-letting. If established, these actions could amount to contempt of court and would reflect serious disregard for the rule of law.
24.The Landlord's conduct, whether by action or inaction, not only obstructed the Tenant’s access to her property but also resulted in material loss. The Tribunal considers the Tenant’s evidence to be credible, supported by her consistent narrative and corroborating affidavit evidence. Consequently, the Tribunal is convinced that the Tenant has established a prima facie case of unlawful eviction, warranting appropriate legal remedies. The Tenant's application is therefore meritorious.
Whether the Landlord’s Application Warrants Relief
25.The Landlord’s application, dated 14th November 2024, seeks to set aside the interim orders and restrain the Tenant from interfering with the current occupant. The Landlord argues that the orders were obtained ex parte and without his input, and that enforcement would unduly prejudice a third party now occupying the premises.
26.It is trite law that every party is entitled to a fair hearing. However, where a party fails to attend despite being served, as appears to be the case here, the Tribunal is not obligated to delay justice indefinitely. The Landlord’s excuse — that the matter was not causelisted — is insufficient, particularly in light of his failure to act diligently once he became aware of the orders.
27.Furthermore, equity aids the vigilant, not those who sleep on their rights. The Landlord’s application does not address his non-compliance with the Tribunal’s express orders. Even if a third party has since taken up occupation, such action, if taken in defiance of existing orders, cannot ground an equitable remedy. The Tribunal is reluctant to reward parties who act in open disregard of judicial authority.
28.Nevertheless, the Tribunal is mindful of the passage of time, the Tenant’s acknowledgment of her deteriorating health, and the likelihood that restoration may no longer be practical. As such, the appropriate remedy lies not in physical reinstatement, but in an award of compensation for the breach of statutory obligations and economic loss occasioned.
29.In conclusion, the Landlord’s application is devoid of merit, procedurally irregular, and tainted by inequitable conduct. It is accordingly dismissed.
E. Orders.
30.In view of the foregoing, the Tribunal makes the following orders:-i.The Tribunal has jurisdiction to determine the matter.ii.The Landlord’s application dated 14th November 2024 is dismissed and Tenant’s application dated 18th September 2024 partly succeeds in the following terms.iii.The Landlord is found to have unlawfully evicted the Tenant without compliance with the procedures under the Act.iv.Tenant is awarded compensation of Kshs. 85,000/- for unlawful eviction and loss of business.v.The landlord shall bear the costs of the suit assessed at Kshs. 15,000/-.vi.OCS Bungoma Police Station to ensure compliance.vii.The file is marked as closed.
HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 28TH DAY OF APRIL 2025