Nyairo v Amenya (Tribunal Case E037 of 2025) [2025] KEBPRT 385 (KLR) (29 August 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 385 (KLR)
Republic of Kenya
Tribunal Case E037 of 2025
J Osodo, Chair & Gakuhi Chege, Member
August 29, 2025
Between
Joseph Momanyi Nyairo
Tenant
and
Victor Amenya
Landlord
Ruling
A. Dispute Background
1.The Tenant/Applicant commenced these proceedings by way of a Reference under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya, dated 8th April 2025 with a complaint that the landlord had locked his business premises without a proper termination notice or an order from the Tribunal directing him to do so.
2.The tenant/applicant filed a notice of motion under a certificate of urgency dated 8th April 2025 in which he sought for the following orders;i.That the application be certified as urgent.ii.That pending the hearing of the application inter-partes, the tribunal issues a temporary injunction restraining the respondents from interfering with the tenant’s peaceful occupation at the suit premises.iii.That the OCS Kegati Police Station do ensure compliance of the said ordersiv.That costs of the application be provided for.
3.The application is supported by the Supporting Affidavit sworn by the Tenant on 8th April 2025 in which the tenant depones that he is a lawful tenant at Kegati trading Centre in respect to a business known as Gesarate Restaurant and that he has paid his rent up to date. The tenant also states that the landlord issued him with an illegal notice to terminate tenancy.
4.The Landlord opposed the application through a Replying Affidavit sworn on 3rd June 2025 and annexed documents marked “VA-1a” to “VA-7c”, photographs, chief’s letter and Mpesa statements. It is deponed that the Tenant has been in substantial arrears, has frustrated the Landlord’s right to rental income, and that the Notice to Terminate tenancy was duly issued and served.
5.By consent of the parties, the Tribunal directed that the matter be disposed of by way of written submissions. The Tenant’s submissions dated 15th July 2025 emphasize that the Notice is defective. The Landlord’s submissions dated 18th July 2025 reiterated the right to rental income and that the notice to terminate tenancy is valid.
6.We shall consider the submissions together with all the pleadings filed as we deal with the issues for determination.
B. Issues for Determination and Analysis
7.The following issues arise for determination:a.Whether the Notice to Terminate Tenancy is valid.b.Whether the Tenant is entitled to the orders sought in the application dated 8th April 2025.c.Who shall bear the costs of the application.
Issue (a) Whether the Notice to Terminate Tenancy is Valid
8.Section 4(2) of Cap 301 is explicit that a landlord seeking to terminate or alter the terms of a controlled tenancy must issue a Notice in the prescribed form and serve it upon the tenant at least two months before the intended date of termination.
9.Upon perusal of all the documents filed, we find that the alleged notice to terminate tenancy has not been filed by either party. The landlord in his replying affidavit has referred to the same as Annexure “VA-5”. However, the same is not attached. The Chief’s letter annexed as “VA-4” has been filed in which the Chief alludes to the said notice to terminate tenancy but the same has not been filed.
10.Following the above, the tribunal is unable to determine the validity of the said notice and shall order that the landlord be at liberty to issue a fresh notice to terminate tenancy in the prescribed form in accordance with Section 4 of Cap 301, Laws of Kenya.
Issue (b) Whether the Tenant is Entitled To The Orders Sought In The Application Dated 8th April 2025
11.The Tenant’s primary prayer is for protection from unlawful eviction and interference. Having found that the Notice to Terminate tenancy has not been filed, the Tenant succeeds on this issue.
12.On the other hand,both parties have annexed Mpesa statements showing rent payment andupon analysis we find that the same, demonstrates non-payment and irregular payment of rent. It is trite law that a landlord is entitled to rental income as a right.
13.In Caledonia Supermarket Ltd v Kenya National Examinations Council [2000] eKLR, the Court held that: -
14.Likewise, in Eben Hardware Hepbjay Ltd v Mugo & Another [2023] KEBPRT 461, the Tribunal affirmed that as long as a tenant remains in occupation, rent is payable notwithstanding the validity or otherwise of a termination notice.
15.Accordingly, the Tenant shall be directed to pay all outstanding rent arrears and failure to comply shall entitle the Landlord to recover the same using lawful means, including distress for rent.
Issue (c) Who Shall Bear the Costs of the Application
16.As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. Given that each party has partially succeeded on different aspects of the case, we shall direct that each party shall bear its own costs.
C. Final Orders
17.In conclusion, the Tribunal makes the following orders:a.The application dated 8th April 2025 is allowed in terms of prayers 2 and 3.b.The Landlord is at liberty to issue a fresh Notice in strict compliance with Section 4 of Cap 301, Laws of Kenya.c.The Tenant shall pay all outstanding rent arrears within fourteen (14) days, failing which the Landlord shall be entitled to recover the same using lawful means.d.Each party shall bear their own costs of the application.e.The Reference dated 8th April 2025 is settled in terms and the court file is ordered closed
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH AUGUST 2025HON. JOYCE AKINYI OSODO - PANEL CHAIRPERSONHON. GAKUHI CHEGE - MEMBERBUSINESS PREMISES RENT TRIBUNAL (BPRT)In the presence of:Nyariki for Landlord/RespondentTenant present - in-person