Marete v Riungu & another (Tribunal Case E412 of 2025) [2025] KEBPRT 370 (KLR) (Civ) (8 August 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 370 (KLR)
Republic of Kenya
Tribunal Case E412 of 2025
J Osodo, Chair & Gakuhi Chege, Member
August 8, 2025
Between
Mary Kendi Marete
Applicant
and
Julia Riungu
1st Respondent
Rhoda Kagwiria
2nd Respondent
Ruling
A. Dispute Background
1.The tenant/applicant moved this Tribunal vide a Reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 dated 22nd April 2025 with a complaint that the landlady had threatened to evict her by issuing a defective notice which is contrary to Cap 301, Laws of Kenya.
2.The tenant filed a notice of motion under a certificate of urgency dated 22nd April 2025 seeking for the following orders; -i.That the application be certified as urgent.ii.That the notice to vacate issued by the respondents to the applicant be declared illegal and of no consequence.iii.That the landlord, caretaker, employees, and agents be restrained from unlawfully increasing rent, interfering with, harassing, intimidating, or evicting the applicant; closing or threatening to close the premises; tampering with, demolishing, disconnecting electricity or power; disposing of or interfering with the applicant's quiet occupation and lawful enjoyment of the suit premises.iv.That the OCS Mwiki Police Station be ordered to assist in enforcing the court's orders.v.That the cost of the application be provided for.
3.The application is supported by an affidavit of even date in which the applicant/tenant deposes that she has been operating her business at the respondents’ premises located at Mwiki Kasarani – Catholic Road, Plot No. 168 since 2023, paying a monthly rent of KES 7,000.
4.She claims that on 18th March 2025, the respondents unlawfully issued her with a notice to vacate by 30th April 2025, which she considers illegal. She asserts that she has invested approximately KES 50,000 in repairs and renovations to improve the business premises.
5.The applicant argues that the notice to vacate was issued without justification and in violation of Cap 301, Laws of Kenya, and believes it was driven by malice.
6.The application is opposed vide a replying affidavit dated 5th May 2025 in which the landlady/1st respondent deposes that they entered into a written tenancy agreement on 12th July 2023, marked as annexure ‘JR-1’, which outlines the terms for leasing the property. That the agreement included a clause allowing either party to terminate the tenancy by issuing a one-month notice.
7.The landlady further deposes that she served the tenant with a 42-day notice to vacate via electronic means on 18th March 2025, which exceeded the agreed notice period. A copy of this notice is annexed as ‘JR-2’. She asserts that the notice was issued in the prescribed format and for a lawful purpose, namely, her intention to occupy the premises with her children to conduct a family business.
8.The landlady denies any illegality in issuing the notice and maintains that the tenant’s claims are unfounded. In response to the tenant's claim of having spent KES 50,000 on renovations, she denies any such improvements were made and puts the tenant to strict proof. She notes that the tenant sells mattresses on the premises, making the claimed renovations implausible. The landlady further denies threatening the tenant with forceful eviction.
9.Additionally, she states that the tenant has not paid rent for April and May 2025 and should be ordered to pay rent for those months.
10.The tenant/applicant filed a supplementary affidavit dated 23rd May 2025 in which she reiterates most of the statements in her replying affidavit. She adds that she has complied with the court’s directions to pay April and May rent and attached evidence of payment.
11.The court directed parties to file their written submissions and both complied with the tenant filing hers dated 23rd May 2025 and the landlady filing hers dated 30th May 2025. We shall consider both submissions as we deal with the issues for determination.
B. Issues for Determination and Analysis
12.The following issues arise for determination; -a.Whether the notice to terminate tenancy dated 18th March 2025 is legal and validb.Whether the tenant is entitled to the orders sought in the application dated 22nd April 2025.c.Who shall bear the costs of the application?
Issue (a) Whether the notice to terminate tenancy dated 18th March 2025 is legal and valid.
13.Section 4(2) and 4(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 outlines the requirements for termination of a controlled tenancy. Specifically, it requires that a landlord intending to terminate such tenancy must issue a notice in the prescribed form and that such notice shall not take effect until at least two months after the date of service, unless the parties have expressly agreed in writing to a lesser period.
14.In the present case, while the respondents have relied on a tenancy agreement dated 12th July 2023 which permitted termination upon issuance of a one-month notice, the notice served on 18th March 2025 fails on two legal grounds. First, the notice was not issued in the prescribed form as required under Cap 301. The law is clear that the form and format are not mere technicalities but essential to validity. The Court of Appeal in Munaver N. Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Ltd (1995) held that failure to comply with the prescribed form renders the notice null and void.
15.Secondly, although the notice granted 42 days to vacate, longer than the one-month agreed period, the prescribed form was not used, and the grounds upon which the termination was sought were not detailed as required. This omission is fatal. The Tribunal finds support in Fisher v Furnishing Stores Ltd (1956) All ER 78, where the court emphasized that a valid intention to terminate must be coupled with compliance with the statutory requirements.
16.Therefore, despite the respondents' assertions that the notice was substantively compliant and exceeded the agreed minimum notice period, the failure to use the prescribed form and specify adequate grounds in accordance with Section 4 of Cap 301 renders the notice legally defective and thus invalid.
Issue (b) Whether the tenant is entitled to the orders sought in the application dated 22nd April 2025.
17.The tenant's application seeks prohibitory orders including a declaration that the notice to vacate is illegal and an order restraining the respondents from interfering with her quiet possession of the suit premises. The Tribunal must therefore determine whether the tenant has established sufficient grounds for the grant of these specific prayers.
18.As already found under Issue (a), the notice to vacate dated 18th March 2025 is defective for failing to comply with the mandatory requirements of Section 4 of Cap 301, including failure to issue the notice in the prescribed form and failure to provide valid statutory grounds. The Tribunal is therefore satisfied that the tenant is entitled to an order declaring the said notice illegal and of no legal consequence.
19.Regarding the prayer to restrain the respondents from interfering with the tenant's quiet possession of the suit premises, the Tribunal notes that the tenant has been in occupation since 2023, has been paying rent, and has annexed proof of payment for the disputed months of April and May 2025.
20.Accordingly, the tenant has satisfactorily established her entitlement to
21.(k) the orders sought in the application dated 22nd April 2025.
Issue (c) Who shall bear the costs of the application?
22.Under Section 12(1of Cap. 301, Laws of Kenya, costs of any suit before this tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall order costs to the tenant/applicant.
C. Orders.
23.The following orders commend to us; -a.The notice to terminate tenancy dated 18th March 2025 is declared illegal and invalid.b.The application dated 22nd April 2025 is allowed.c.The reference dated 22nd April 2025 is settled in termsd.The landlord is at liberty to issue a valid notice to terminate tenancy according to Section 4 of Cap 301 Laws of Kenya.e.Costs of KES. 7,000 to the tenant/applicant to be offset against the rent account.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH AUGUST 2025.HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE(PANEL MEMBER)In The Presence Of: -Tenant present-in-personKurui for respondent