Bundi v Mutambo & 2 others (Tribunal Case E1043 of 2022) [2025] KEBPRT 382 (KLR) (Civ) (19 August 2025) (Judgment)
Neutral citation:
[2025] KEBPRT 382 (KLR)
Republic of Kenya
Tribunal Case E1043 of 2022
Gakuhi Chege, Chair & J Osodo, Member
August 19, 2025
Between
Efrond Mutuma Bundi
Applicant
and
Lucy Wambui Mutambo
1st Respondent
Harry Mwangera Wachuka
2nd Respondent
Moran Auctioneers
3rd Respondent
Judgment
Introduction.
1.This dispute arises from a tenancy relationship between the Applicant, Efrond Mutuma Bundi, and the Respondents over business premises situated on Plot No. Block 141/718 Njiru/Kasarani Phase 1 “A”.
2.The Applicant alleges that despite being up-to-date in rent payments, the Respondents issued an illegal notice to vacate, instructed auctioneers to proclaim his tools of trade, and generally interfered with his quiet possession of the premises.
3.The Respondents contend that the Applicant is in substantial rent arrears, has sublet the premises without consent, and obtained an extension of the lease fraudulently without the 2nd Respondent’s involvement or consent.
4.The matter proceeded by way of viva voce evidence with the tenant relying on his filed pleadings and documents in support of his case. He did not call any other witness.
5.On the other hand, both landlords also testified and relied on their filed documents without calling any other witness. We have duly considered the evidence tendered by both parties in arriving at our decision.
6.The Tribunal is called upon to determine the competing claims, assess the evidence, apply the relevant law, and issue final orders.
B. Analysis Of Pleadings & Evidence
7.Applicant’s Pleadings and Evidence: Notice of Motion dated 9th November 2022 seeking injunctive orders against eviction and distress; supporting affidavit stating rent had been paid up to November 2022, attaching Mpesa statements, lease agreements (2017 and 2021), and alleged illegal notices; claims of improvements to the premises worth Kshs. 4,000,000; installation of electricity and water; payment of utility reconnection costs; supplementary and further affidavits with filtered Mpesa statements.
8.Respondents’ Pleadings and Evidence: Replying affidavit by the 2nd Respondent stating both 1st and 2nd Respondents are co-landlords, alleging arrears since October 2019; subletting without consent; illegality of 2021 lease extension without consent; production of Mpesa statements, rent account, and notice of termination; claim of arrears of Kshs. 442,870 after reconciliation.
9.Documentary Exhibits: Lease agreements dated 12th October 2017 and 15th June 2021; Mpesa payment statements from both parties; proclamation notice by Moran Auctioneers dated 3rd November 2022; rent account prepared by the landlord; notices to vacate and related correspondence.
10.Submissions by the Respondents: The Respondents submitted that the Applicant is in substantial arrears amounting to Kshs. 442,870, supported by rent statements and Mpesa records. They argued that under Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, they are entitled to terminate the tenancy for non-payment of rent. They relied on the case of Gusii Mwalimu Investment Co. Ltd v Mwalimu Hotel Kisii Ltd [1995-1998] 2 EA 100, submitting that distress for rent is lawful where arrears exist. They further cited Pritam v Ratilal [1972] EA 560, arguing that where a lease is entered without consent of a co-owner, it is unenforceable against that co-owner.
11.Submissions by the Applicant: The Applicant submitted that he is a protected tenant under Cap 301, having a valid lease until 2027. He argued that there are no rent arrears as alleged, producing Mpesa statements and averring that some payments were made in cash to the landlord and her son. He contended that the distress was illegal for want of a lawful demand, relying on the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, where the Court defined a prima facie case warranting injunctive relief. The Applicant also relied on the case of Joram Nyaga v Kenya Tea Development Agency [2019] eKLR, submitting that equity aids the vigilant and that the landlord’s conduct amounted to harassment contrary to the Act.
12.During the pendency of this suit, the landlords sold the suit property to one Johnson Muriithi who became the tenant’s new landlord. The tenant had sought for joinder of the new landlord in this suit but the application was declined.
C. Analysis Of Issues, Law Applicable & Determination
13.It was agreed by both parties that the only issue that remained for determination was whether the Applicant is in rent arrears and, if so, the quantum thereof. The second issue relates to who should bear the costs of the proceedings.
14.The Respondents produced a detailed rent account and Mpesa statements showing irregular payments from 2019 to 2022, with an outstanding balance of Kshs. 442,870. The Applicant disputes the arrears, relying on Mpesa statements and cash payments allegedly made to the 1st Respondent and her son, but did not produce signed acknowledgments for cash payments, save for one agreement in 2017. Under Section 109 of the Evidence Act, the burden of proving payment lies on the tenant alleging it. The Applicant’s evidence does not fully discharge this burden. This finding is supported by the decision in Kyangavo v Kenya Commercial Bank Ltd & Another [2004] eKLR, where it was held that the burden of proving payment rests with the party alleging it.
15.The Respondents issued a termination notice under Cap 301 and instructed Moran Auctioneers to levy distress. If rent arrears existed, distress is a lawful remedy under section 3 of the Distress for Rent Act. However, distress must follow due process as held in Gusii Mwalimu Investment Co. Ltd V Mwalimu Hotel Kisii Ltd [1995-1998] 2 EA 100. The Applicant alleges lack of demand, but the Respondents produced prior demand letters. Similarly, in Mbuthia v Jimba Credit Corporation Ltd [1988] eKLR, the Court emphasized that statutory remedies such as distress must strictly follow procedural requirements.
16.Finally, under Section 12(1) (k) of 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 landlords/respondents.
D. Final Orders
17.Based on the foregoing analysis, the following final orders commend to us: -a.The Applicant is found to be in rent arrears of Kshs. 442,870 as at October 2022.b.The Respondents are entitled to use lawful means to recover the said arrears.c.The Applicant’s application dated 9th November 2022 is hereby dismissed.d.Costs of the application and the entire proceedings are awarded to the Respondents.It is so ordered.
JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF AUGUST 2025.HON. GAKUHI CHEGEPANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODOPANEL MEMBERIN THE PRESENCE OF: -Munyambu for the tenantMiss Kirui for the landlords