Ali v Mbacia & 2 others (Tribunal Case E099 of 2025) [2025] KEBPRT 335 (KLR) (27 June 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 335 (KLR)
Republic of Kenya
Tribunal Case E099 of 2025
A Muma, Member
June 27, 2025
Between
Abdalla Abdi Ali
Applicant
and
Joseph Mbacia
1st Respondent
Denis Mbichi Mboroki
2nd Respondent
Nancy Wambui Kangethe
3rd Respondent
Ruling
A. Parties And Their Representatives
1.The Applicant, Abdalla Abdi Ali (the “Tenant”) is the tenant of the premises which is the subject matter of the present suit.
2.The 1st Respondent, Joseph Mbacia (the “Landlord”) has let out business premises at the property known as Land Reference No. 104/41 which is the subject matter of this suit (hereinafter referred to as “the premises”).
3.The 2nd and 3rd Respondents have grant of probate over the estate of the deceased Stephen Mbugua Mbuthia who has title over the premises.
4.The Firm of Bashir and Associates is on record for the Tenant/Applicant.
5.The Firm of Nelly Njenga & Company Advocates is on record for the 1st Respondent/ Landlord.
6.The firm of Mbichi Mboroki & Kinyua Advocates is on record for the 2nd and 3rd Respondents/Landlords.
B. Background Of The Case
7.The genesis of this matter is that the 2nd and 3rd Respondents issued the Tenant with a notice of termination dated 5th December, 2024 effective on 31st January, 2025 on the ground that they intended to let the suit premises to Hawassa Filling Station.
8.In response thereto, the Tenant moved this Tribunal vide a Reference and Notice of Motion dated 29th January, 2025 seeking inter alia orders restraining the Landlords from evicting him pending hearing and determination of the Application and Reference.
9.Having considered the Tenant’s Reference, Application, this Tribunal issued interim orders restraining the Landlords from evicting the Tenant from the premises.
10.In response the 2nd and 3rd Respondents/Landlords filed a Replying Affidavit dated 19th February, 2025 where they raised a Preliminary Objection that the Tribunal has no jurisdiction.
11.The Tenant filed a Further Affidavit dated 17th March, 2025.
12.On the 2nd April, 2025 the 1st Respondent/Landlord filed a Replying Affidavit in which he averred that he entered into a tenancy agreement with the Tenant as the agent of the registered owner.
13.The Tenant and the 2nd and 3rd Respondents then filed written submissions both dated 30th April, 2025.
C. Tenant’s Case
14.The Tenant submitted that it entered into a verbal Tenancy Agreement over the premises on 1st March, 2024 for a period of four years at a monthly rent of Kshs. 85,000.00.
15.The Tenant submitted it operates an Islamic learning institution on the suit premises, which is run as for-profit business enterprise and qualifies as a business premises with Section 2 of Cap 301, Laws of Kenya.
16.The Tenant therefore submitted that this Tribunal has jurisdiction to hear and determine the Reference as the Tenancy falls under controlled tenancy as defined under the Landlords and Tenants (Shops, Hotels and Catering Establishments) Act.
17.The Tenant further submitted that the Respondents should be restrained from interfering with his Tenancy since he acted on the 1st Respondent’s representation as Landlord to establish Landlord and Tenant relationship.
18.The Tenant submitted that he has invested substantially in the premises and has already paid six months of rent upfront, as confirmed by the 1st Respondent. He averred that if evicted arbitrarily, he risks economic ruin and will be unable to recover his advance payment.
D. Landlords’ Case
19.The Landlords submitted that the Tribunal has no jurisdiction to hear and determine the matter since the premises is a residential place which is not a controlled tenancy within the jurisdiction of the Tribunal.
20.The 2nd and 3rd Respondents also submitted that the Tribunal has no jurisdiction to hear and determine the dispute between the 1st Respondent and its beneficiaries which is the subject matter of Succession Cause No. 2605 of 2001.
21.The 1st Respondent, however averred that he entered into a tenancy agreement on 1st March, 2024 with the Tenant as an agent of the registered owner of the premises.
22.The 1st Respondent submitted that the 2nd and 3rd Respondents who are the trustees of the estate of the deceased have failed to render proper and timely accounts and as such received court order dated 20th December, 2024 asking them to render full accounts of the deceased’s estate.
23.The 1st Respondent averred that allowing the Tenant to remain in occupation of the premises does not prejudice the rights of the 2nd and 3rd Respondents as the 2nd and 3rd Respondents are in fact planning to lease the property for the purpose of establishing a filling station.
E. Issues For Determination
24.Having carefully perused the Reference, Application, Responses and Written Submissions, it is therefore my respectful finding that the sole issue for determination before this honourable tribunal is:i.Whether this tribunal has the requisite jurisdiction to hear and determine this matter.
F. Analysis And Determination
i. Whether this tribunal has the requisite jurisdiction to hear and determine this matter
25.Guided by the locus classicus case of Lillian S' v Caltex Oil (Kenya) Limited, Civil Appeal No 50 of 1989, [1989] eKLR this Tribunal acknowledges that jurisdiction is everything. Nyarangi J as he then was held that:
26.Section 12 of the Landlords and Tenants (Hotel, Shop and Catering Establishment) Act Cap 301, Laws of Kenya provides the powers of Tribunal as follows:
27.This Tribunal is guided by Section 2 of the Landlords and Tenants (Hotel, Shop and Catering Establishment) Act Cap 301, Laws of Kenya which establishes the criteria for determining the existence of a controlled tenancy. It provides that:
28.The Tenant and the 1st Respondent have recognized the existence of verbal Tenancy Agreement. However, the 2nd and 3rd Respondent disputes existence of Tenancy on the ground that the premises was a residential place and not a business premises.
29.Cap 301 of the Laws of Kenya provides that the tenancy that falls within the jurisdiction of this Tribunal must be of a hotel, shop or catering establishment.
30.The Tribunal takes notice that the parties have not adduced evidence to this Tribunal on the user of the premises.
31.Given that Section 107 of the Evidence Act Cap 80, Laws of Kenya requires to prove, the Tribunal cannot therefore determine the user of this premises to enable it determine whether it has jurisdiction to hear and determine Reference and Application dated 29th January, 2025.
G. Orders
32.In the upshot, the 2nd and 3rd Respondent’s Preliminary Objection raised in the Replying Affidavit dated 19th February, 2025 is dismissed in the following terms:i.Inspection to be carried out on the premises on a date to be agreed upon at the registry and an Inspection Report filed.ii.Parties to have 14 days each to file documents for the substantive hearing of the reference together with the PO. Landlord to commence.iii.The Tribunal’s orders issued on 29th January,2025 are extended pending the hearing and determination of the Reference and Application herein.iv.Hearing on 6th of August 2025.v.Parties to bear their own costs.
HON A. MUMAMEMBERBUSINESS PREMISES TRIBUNALRuling dated, delivered and signed at Nairobi on this 27th day of June 2025 in the presence of Hussein for Bashir for the Tenant and Kinyua for Landlord.HON A. MUMAMEMBERBUSINESS PREMISESN TRIBUNAL