Jabali Elementary School v Kenya Girl Guides Association (Tribunal Case E562 of 2025) [2025] KEBPRT 387 (KLR) (28 August 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 387 (KLR)
Republic of Kenya
Tribunal Case E562 of 2025
Gakuhi Chege, Chair & J Osodo, Member
August 28, 2025
Between
Jabali Elementary School
Tenant
and
Kenya Girl Guides Association
Landlord
Ruling
Introduction and Parties' Pleadings
1.The Tenant, Jabali Elementary School, brought the present application by way of Notice of Motion dated 20th May 2025 supported by the affidavit of Catherine Oduor sworn on 16th May 2025. The Tenant seeks injunctive orders restraining the Landlord from interfering with its occupation of the leased premises situate on L.R. No. 209/6248, Nairobi, being the Basement, Ground Floor, Mezzanine and Second Floor of the Training Centre.
2.The Tenant asserts that the Landlord issued an illegal termination notice dated 17th April 2025, requiring it to vacate by 31st August 2025. It is contended that the notice was not in the prescribed form under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, and that it was never deposited with this Tribunal.
3.The Tenant further claims that it has duly paid rent up to May 2025, annexing receipts, and that the Landlord is engaging in harassment by bringing strangers to view the premises. The Tenant emphasizes that eviction would disrupt the pupils’ learning and violate Article 53(2) of the Constitution, which requires that the best interests of the child be of paramount consideration.
4.The Tenant prays for a declaration that the termination notice is null and void, that the Landlord be restrained from interfering with its possession, and that costs be awarded to it.
5.The Landlord, Kenya Girl Guides Association, opposed the application through a Replying Affidavit sworn by Clare Opiyo on 23rd June 2025.
6.The Landlord’s case is that the parties entered into a lease dated 18th September 2020 for a term of five years and three months commencing 1st June 2020 and expiring 31st August 2025. The lease expressly stipulated quarterly rent payments in advance and provided annual rent figures.
7.According to the Landlord, the Tenant has been in persistent default, accruing arrears of Kshs. 11,282,830.48 as at March 2025. Numerous payment proposals and indulgences were given, but the Tenant repeatedly failed to honour them. Even cheques issued were dishonoured, and only partial irregular payments were made.
8.The Landlord issued a termination notice dated 13th March 2024 under section 4(5) of Cap 301, which was never challenged, followed by a final reminder notice dated 17th April 2025. The Landlord also communicated that it had no intention to renew the lease beyond 31st August 2025.
9.The Landlord maintains that: The Tribunal cannot extend or rewrite the contract; No notice under section 4(2) is required where a fixed lease expires by effluxion of time; The Tenant’s application is defective and an abuse of process; The arrears and breaches disentitle the Tenant from equitable relief.
10.Both parties filed written submissions. The Tenant leaned on Giella v Cassman Brown and constitutional rights of children. The Landlord sets out detailed issues and cited several authorities, which we shall now consider.
B. Issues for Determination
11.From the pleadings and submissions, the following issues arise for determination:a.Whether the termination notice is valid in law.b.Whether a section 4(2) notice is necessary upon expiry of a fixed lease by effluxion of time.c.Whether the Tenant has established grounds for injunctive relief under the Giella principles.d.Whether the Tribunal has jurisdiction to extend or preserve the tenancy after 31st August 2025.e.Whether the Tenant’s application is defective and an abuse of the court process.f.Who should bear the costs?
C. Analysis of Issues, Evidence, the Law & Determination
Issue a): Validity of the termination notice
12.The Tenant attacks the notice dated 17th April 2025 for not being in the prescribed form. However, the Landlord shows that an earlier notice dated 13th March 2024 under section 4(5) had already been served and never challenged.
13.In Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR, the Court of Appeal held:
14.We find that the complaint about the form of notice cannot salvage the Tenant’s case.
Issue b): Necessity of a section 4(2) notice upon expiry of a fixed lease
15.The lease herein commenced on 1st June 2020 and was for five years and three months, ending 31st August 2025.
16.The Landlord submits, and we agree, that no notice is required under section 4(2) where the lease expires by effluxion of time.
17.In Pritam v Ratilal [1972] EA 560, the Court of Appeal observed as follows:
18.Likewise, in Kenya Hotel Properties Ltd v Willesden Investments Ltd [2009] eKLR, the Court of Appeal reiterated:
19.Applying those authorities, we hold that the lease herein will lapse on 31st August 2025 by effluxion of time, without any need for a statutory notice.
Issue c): Injunctive relief under Giella principles
20.The Tenant invokes Giella v Cassman Brown (1973) EA 358, but the Landlord argues that no prima facie case has been shown because the Tenant is heavily in arrears.
21.In Mrao Ltd v First American Bank of Kenya Ltd [2003] KLR 125, the Court of Appeal explained a prima facie case as:
22.The Tenant’s admission of arrears of over Kshs. 11 million negate any arguable right.
23.On irreparable harm, the Tenant pleads children’s rights under Article 53. While important, the courts have repeatedly held that constitutional rights cannot override clear contractual obligations.
24.In Telkom Kenya Ltd v John Ochanda [2014] eKLR, the Court of Appeal held:
25.The balance of convenience also favours the Landlord, who has endured long-standing arrears.
Issue d): Jurisdiction of the Tribunal to extend tenancy
26.The Tribunal’s jurisdiction is confined to controlled tenancies under Cap 301. Once the fixed lease expires, the Tribunal has no mandate.
27.In National Oil Corporation v Priscillah K. Karobia [2014] eKLR, the High Court stated:
28.The position was reiterated in Kasturi (supra):
29.We therefore hold that this Tribunal cannot extend or preserve the tenancy beyond 31st August 2025.Issue e): Whether the application is defective and an abuse of process
30.The Landlord pointed out that the Tenant’s supporting affidavit was sworn on 16th May 2025 before the application dated 20th May 2025, rendering the application defective.
31.While this anomaly alone might not be fatal, the broader picture shows that the Tenant filed this application merely to delay inevitable eviction despite admitted arrears and an expiring lease. Such conduct amounts to abuse of court process.
Issue f): Costs
32.Costs follow the event. The Tenant’s case has no merit. The Landlord is entitled to costs under section 12(1)(k) of Cap 301.
D. Final Orders
33.For the reasons set out above, we make the following orders:a.The Tenant’s Notice of Motion dated 20th May 2025 and the reference are hereby dismissed in entirety.b.The Tribunal finds and declares that the lease between the parties will expire by effluxion of time on 31st August 2025, and no statutory notice was required to be served upon the tenant under section 4(2) of Cap 301.c.The Tribunal lacks jurisdiction to extend the lease beyond that date.d.Interim injunctive orders issued on 22nd May 2025 are hereby discharged forthwith.e.The Tenant shall vacate and deliver vacant possession of the premises to the Landlord on or before 31st August 2025 and in default shall be evicted therefrom with the assistance of the OCS within whose jurisdiction the premises are situate.f.The Tenant shall pay the Landlord’s costs of this application and the reference.g.The said costs shall be taxed by the Tribunal’s Deputy Registrar on application.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF AUGUST 2025HON. GAKUHI CHEGE - PANEL CHAIRPERSON)HON. JOYCE AKINYI OSODO - PANEL MEMBERBUSINESS PREMISES RENT TRIBUNALIn the presence of: -Miss Ongeta holding brief for OmwengaAwino holding for Kahiti for the landlord/respondent