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Maswii v Hamisi (Tribunal Case E154 of 2023) [2025] KEBPRT 364 (KLR) (8 August 2025) (Judgment)

Maswii v Hamisi (Tribunal Case E154 of 2023) [2025] KEBPRT 364 (KLR) (8 August 2025) (Judgment)
Citation
Maswii v Hamisi [2025] KEBPRT 364 (KLR)
Media Neutral Citation
[2025] KEBPRT 364 (KLR)
Court
Business Premises Rent Tribunal
Outcome
Allowed
Case number
Tribunal Case E154 of 2023
Attorneys
Judges
Gakuhi Chege, J Osodo
Judgment date
8 August 2025
Language
English
Type
Judgment
Original source file
Download DOCX (26.5 KB)
Collections
Date published
13 August 2025
Case action
Judgment
Filing county
Nairobi
Order
The Tribunal issues the following orders: - a. The Tenant/Respondent, Abdul Hamisi, shall pay to the Applicant, David Mwenge Maswii, the sum of Kshs 495,000 being rent arrears due as at July 2025. b. The Respondent shall vacate and give vacant possession of the business premises in Voi Town within Thirty (30) days of the date of this judgment failing which he shall be evicted by a Licensed Auctioneer who shall be given security by the OCS Voi Police Station. c. The Respondent shall repair and restore the premises to the condition they were in as of April 2022 within Thirty (30) days hereof failing which the Applicant shall do the same and recover the said costs from him. d. The Applicant shall be at liberty to levy distress in default of payment of the arrears. e. The Respondent shall bear the costs of this suit.
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I. Introduction
1.The Landlord/Applicant, Mr. David Mwenge Maswii, filed a reference and Notice of Motion dated 16th June 2023 against the Tenant/Respondent, Mr. Abdul Hamisi, seeking payment of rent arrears, vacant possession of business premises located in Voi Town, Taita Taveta County, and restoration of the premises allegedly damaged by the Respondent.
2.The Applicant avers that the Respondent entered into a tenancy agreement for the premises on 15th April 2022 at a monthly rent of Kshs 15,000, and that he has defaulted in rent payments since April 2022, resulting in accumulated arrears of Kshs 435,000 by January 2025.
3.The Respondent disputes the existence of any landlord-tenant relationship with the Applicant, asserting that his true landlord is Kenya Oil Company Limited. He also filed a preliminary objection challenging the Applicant’s locus standi and the jurisdiction of the Tribunal.
II. Documents Filed By The Parties
A. Applicant’s Documents
4.The Applicant filed:i.A tenancy agreement dated 15th April 2022 (DM-1);ii.Mpesa statements showing initial rent and deposit payments (DM-2);iii.A supporting affidavit sworn on 16thJune 2023;iv.A witness statement dated 6th January 2025;v.Photographs of the damaged premises;vi.A Police Occurrence Book (OB) extract dated 23rd July 2024;vii.Written submissions filed through Charles Dan & Associates Advocates dated May 2025.
B. Respondent’s Documents
5.The Respondent filed:I.A statement of defence and preliminary objection dated 17th December 2024;II.A letter from Kenya Oil Company Ltd dated 10th May 1985 appointing one Jimmy Chuma as caretaker (Defence Exhibit 1);III.National Identity Cards for the Respondent and Mr. Chuma;IV.A witness statement dated January 2025;V.A list of documents and written submissions dated 29th May 2025 filed by S.M. Sagwe & Co. Advocates
III. Analysis Of Documents And Submissions
A. Applicant’s Case and Submissions
6.The Applicant contends that the tenancy agreement (DM-1) demonstrates a valid lease beginning April 2022. It is signed by both parties and a witness and provides for rent of Kshs 15,000 per month.
6.The Mpesa payments (DM-2) show a total of Kshs 45,000 paid by the Respondent as rent deposit and first month’s rent. The Applicant testified that rent default began shortly after and no further payments were received.
7.In submissions, the Applicant's counsel emphasized the doctrine of estoppel under Sections 116 and 120 of the Evidence Act and cited the Court of Appeal decision in Abdukrazak Khalifa Salimu v Haru Rashid Khator & 2 others (2018) eKLR to argue that a tenant who takes possession cannot later deny the landlord’s title.
6.The Applicant also submitted that the Respondent unlawfully damaged the premises and should be compelled to restore them to their original condition.
B. Respondent’s Case and Submissions
10.The Respondent contends that he is not the Applicant’s tenant but a tenant of Kenya Oil Company Limited on Plot No 1956/12816 in Voi. He relies on Defence Exhibit 1(a) a letter from Kenya Oil dated 1985 appointing Mr. Jimmy Chuma as caretaker.
10.The Respondent alleged rent was paid through Mr. Chuma via M-Pesa but did not produce receipts or bank confirmations to support the claim.
10.Counsel for the Respondent challenged the validity of the tenancy agreement, arguing it was not executed before a known advocate and lacked a seal or stamp.
10.In submissions, the Respondent also argued that the Tribunal lacks jurisdiction due to non-service of a statutory notice of termination as required under Section 4(2) of Cap. 301.
IV. Issues For Determination
14.The key issues arising are:a)Whether a landlord-tenant relationship existed between the parties;b)Whether the Applicant has locus standi and whether the Tribunal has jurisdiction;c)Whether rent arrears are due and recoverable;d)Whether the Respondent is estopped from denying the Applicant’s title;e)Whether the Applicant is entitled to the reliefs sought;f)Who should bear the costs of the proceedings.
V . The Law And Analysis
A. Validity of Tenancy and Landlord-Tenant Relationship
15.The tenancy agreement produced (DM-1), the Mpesa payment confirmations (DM-2), and the Respondent’s continued occupation of the premises strongly support the existence of a landlord-tenant relationship.
15.The Respondent’s reliance on a 1985 caretaker appointment letter is inadequate to rebut the documented lease relationship. There is no tenancy agreement with Kenya Oil Co. produced, nor proof of rent payments to them.
B. Estoppel under the Evidence Act
17.Section 116 of the Evidence Act states:“No tenant of immovable property... shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title..."
18.Further, Section 120 provides:“When one person has by his declaration, act or omission... permitted another person to believe a thing to be true... he shall not be allowed to deny the truth of that thing."
19.The Respondent is estopped from denying the Applicant’s title, having taken possession, paid rent, and operated under the lease agreement.
19.The foregoing was restated by the Court of Appeal in Abdukrarazak case (supra) at paragraph as follows: -“
36.In the instant appeal, the appellant is attempting to question the title of the respondents by invoking Section 4 (2) of the Limitation of Actions Act. He is also challenging the respondents’ title by asserting that the trial court ought to have inquired who put Mr. Said A. Bawazir into possession of the suit property. In this context, the appellant as the owner of house without land and being a tenant is questioning the title of the respondents qua landlord. This he cannot do. The appellant is estopped from challenging the respondents’ title as landlord of the suit property. If a tenant denies or challenges the title of the landlord, the tenant must first surrender the possession of the property back to landlord. He cannot on one hand oppose the landlord’s title and on the other have possession of the property. Section 121 of the Kenya Evidence Act, Cap 80 aptly covers this as it provides:
“121.No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that such person had a right to such possession at the time when the license was given.”
C. Rent Arrears
20.The Applicant’s uncontested evidence shows the Respondent has not paid rent since April 2022. The arrears stood at Kshs 435,000 as of January 2025 and have since risen to Kshs 495,000 by July 2025.
20.The Respondent has not produced any credible evidence to the contrary and has therefore failed to discharge the evidential burden under Section 109 of the Evidence Act which provides as follows: -“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
D. Jurisdiction and Notice
22.The preliminary objection based on lack of notice under Section 4(2) of Cap. 301 lacks merit. The Tribunal assumed jurisdiction on the basis of a controlled tenancy and rent default, which entitles the landlord to file a reference under Section 12(4) of the Act.
E. Costs
22.Finally, costs of every action before this Tribunal are in our discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. We have no reason to deny costs to the tenant being the successful party.
VI. Conclusion & Final Orders
24.The Tribunal issues the following orders: -a.The Tenant/Respondent, Abdul Hamisi, shall pay to the Applicant, David Mwenge Maswii, the sum of Kshs 495,000 being rent arrears due as at July 2025.b.The Respondent shall vacate and give vacant possession of the business premises in Voi Town within Thirty (30) days of the date of this judgment failing which he shall be evicted by a Licensed Auctioneer who shall be given security by the OCS Voi Police Station.c.The Respondent shall repair and restore the premises to the condition they were in as of April 2022 within Thirty (30) days hereof failing which the Applicant shall do the same and recover the said costs from him.d.The Applicant shall be at liberty to levy distress in default of payment of the arrears.e.The Respondent shall bear the costs of this suit.
JUDGEMENT DATED, SIGNED AND DELIVERED THIS 8 TH DAY OF AUGUST 2025 HON. GAKUHI CHEGE - PANEL CHAIRMAN BUSINESS PREMISES RENT TRIBUNAL HON. JOYCE AKINYI OSODO -PANEL MEMBERIn the presence of :Tenant present-in-personSagwe for respondentNo appearance for applicant
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1. Evidence Act Cited 13251 citations
2. Limitation of Actions Act Cited 4319 citations
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1. Abdukrazak Khalifa Salimu v Harun Rashid Khator & 2 others [2018] KECA 151 (KLR) Explained 10 citations

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