Osewe v Wambui & another (Tribunal Case E008 of 2025) [2025] KEBPRT 320 (KLR) (16 June 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 320 (KLR)
Republic of Kenya
Tribunal Case E008 of 2025
N Wahome, Chair & Joyce Murigi, Member
June 16, 2025
Between
Vincent Otieno Osewe
Tenant
and
Rosemary Wambui
1st Respondent
Stevenson Wachira Wanjohi t/a First Properties Limited
2nd Respondent
Ruling
1.This Ruling is on the Tenant’s/Applicants notice of motion application dated 4/3/2025. The application is anchored on Sections 1A, 1B and 63 of the Civil Procedure Act, Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 4(2) and 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments Act (Cap. 301) hereafter referred to as “the Act”.
2.The application aforesaid was founded on the reference dated the 3/3/2025 which raised the following complaint,-
3.In the notice of motion application the Tenant has sought for orders to the effect that:-i.The landlady and his agents be restrained from sealing the property, bolting the doors, latching the shop or evicting the complainant from shop number 1,2,5 and 6 pending the hearing and determination of this application and eventually the main suit.ii.The Respondents be compelled to compensate the Tenant for the broken locks, cost of re-opening the shops and for loss of business at a total of 20,000/-.
4.The evidence of the Tenant is that:-i.He was a Tenant of the Landlady and occupied shop nos. 1, 2, 5 and 6 at a total rent of Kshs 54,000/-.ii.On the 27/2/2025, the Respondents locked up shop nos. one (1) and two (2) and were threatening to lock up shop no. five (5) and no. six (6).iii.The Respondents had maliciously accused the Tenant of theft and he was arrested and locked up at Ruiru Police Station.iv.He was in complete compliance with the terms of his unwritten tenancy with the Respondents.
5.From his supplementary affidavit sworn on the 3/4/2025, the Tenant asserted that:-(a)Judgement should be entered against the 2nd Respondent in the application who had not filed any response to his application.(b)His problems with the landlady only arose from his demand to be paid his salary arrears when he was employed as the landlady’s caretaker on the subject building.(C )He occupied two (2) shops on which he paid rent at Kshs 42,000/- and was fully compliant.(d)This court could not address the issue of rent arrears claimed by the landlady at Kshs 168,000/- as the same was on a residential premises in which he lived thus this court had no jurisdiction.(e)The Landlady had not claimed any rent arrears on the business premises.(f)The landlady wanted to evict him under the guise of him having sublet the premises and being in rent arrears.(g)He was paying rent for the two shops he occupied and the residential premises within the same building.
6.In his submissions dated 4/4/2025, the Tenant asserted that:-(i)This court did not have the jurisdiction to address the claim of rent arrears by the landlady for Kshs 168,000/- as the same was purportedly on a residential premises.(ii)He had satisfied all the pre-requisites for grant of an injunction as laid down in the cases of:-a.Giella v Cassman Brown Co. Ltd (1973) andb.Mrao Ltd v First American Bank of Kenya Ltd and others (2003) eKLR.iii.He was entitled to damages/compensation and for costs of the suit.
6.On her part, the landlady filed the Replying Affidavit sworn by herself on the 18/3/2025 in response to the Tenants suit. She testified that:-i.The 2nd Respondent was her agent for purposes of managing the building herein.ii.The Applicant was not her Tenant as he had not signed a Tenancy agreement with her.iii.He had occupied two (2) shops and had sublet two (2) others without her consent and he was keeping the rent.iv.He had rent arrears for a two bedroom premises at Kshs 168,000/- which she claimed.v.The Tenant occupied two shops at a rent of Kshs 42,000/- and not 4 rooms at the rent of Kshs 54,000/- as claimed in his application.vi.She had not issued any eviction notice against the Tenant.vii.She only wanted the Tenant to meet his rental obligations.
7.In her submissions dated 11/4/2025, the landlord submitted that:a.The Tenant had not proved a case for special damages as required in the holding in the case of Hahn v Singh (1985) KLR.b.The Tenant had not proved a case for grant of injunction.
8.We have perused the parties pleadings and evidence and also their respective submissions and we are of the view that the issues that arise for determination are the following:-i.Whether the Tenant’s Application dated 4/3/2025 is merited.ii.Whether the landlady’s claim for rent arrears has merit.iii.Who should bear the costs of this suit.
9.On the issue of whether the Tenant’s application dated 4/3/2025 is merited, we further note that it is not clear as to how many shops the Tenant occupies or had occupied at the demised premises. In the application, the Tenant asserts that he occupied four shops being shop Nos. 1,2,5 and 6 at the rent of Kshs 54,000/-.
10.However, at paragraph 8 of the supplementary affidavit sworn on the 3/4/2025, the Tenant stated that:-
11.It is not clear from the court record whether the Tenant was paying only Kshs 12,000/- for the other two (2) shops that he allegedly “let go”. This is because, in the application and affidavit he had alleged to be in occupation of four shops at the total rent of Kshs 54,000/-.
12.The Tenant has also not indicated whether he let go the two shops after he came to court or before. Did he let go the two shops after the Landlady raised the issue of subletting? It is also not clear as which premises had been welded or locked up, was it the premises that the Tenant let go or the ones that he occupies?.
13.We further note that the Tenant has not provided any evidence of payment of either the rent at Kshs 42,000/- which in any event is admitted by the landlady or Kshs 54,000/- allegedly for 4 shops. The burden of law is that he who alleges must prove.
14.Section 107 of the Evidence Act provides that:-
15.In this matter, the Tenant had indicated that he had 4 shops and two of which had been locked up. It is not clear from the record whether it is the shops that he occupies now or the ones that he “let go” to quote his own words.
16.With such uncertainty it would be an exercise in futility to grant the orders sought. The orders may actually and most likely so, apply to the premises already released by the Tenant to the landlady. Courts cannot issue orders in vain and we decline the same.
17.The Tenant has requested this court to enter judgement in its favour against the 2nd Respondent who never entered appearance nor filed any responses. In our view the 1st Respondent who is the principal had effectively responded to the Tenants suit. The actions of a principal or an agent bind on the other. Such a judgement if issued would be in vain and therefore serve no purpose.
18.The Tenant has also sought for compensation for the locked doors, for unlocking the same and replacing the broken locks and also for loss of business. We reiterate that it is not certain whether the Tenant was entitled to the two shops that had been locked up and therefore to qualify to be compensated. Special damages also require to be specifically pleaded and strictly proved. We doubt that the Tenant has satisfied the threshold set in the case of Hahn v Singh Supra. We therefore also decline that prayer.
19.The 2nd issue is on whether the landlady’s claim for rent arrears at Kshs 168,000/- is merited. It is not in doubt that the claim is on a residential premises. Indeed the landlady at paragraph 6 of her Replying Affidavit states that:-
20.The distress letter dated 21/2/2025 by M/S Ndamene Agencies Auctioneers marked as V00-1 in the Tenant’s supplementary Affidavit confirms that the goods proclaimed were household goods. It then follow this the court has no jurisdiction to attend to the landlady’s claim.
21.Section 2(1) of the Act provides that:-
22.On costs, we are of the view that each party should bear own costs. This is for the reason that the Tenant has failed in its claim as is the landlady. We also note that the landlady without any regard to the law had arbitrarily locked up some shops claimed by the Tenant instead of seeking for recourse from this court.
23.In the final analysis, the orders that commend to us are the following:-i.That the Tenant’s reference dated 3/3/2025 and the Application thereof dated 4/3/2025 are dismissed.ii.That the landlady’s claim for rent arrears is struck out for want of Jurisdiction.iii.That each party do bear own costs of this suit.Those are the orders of the court.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF JUNE 2025.HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the absence of the parties though duly notified of the same.HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.