Kimani v Behlani & another (Tribunal Case E1079 of 2024) [2025] KEBPRT 388 (KLR) (29 August 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 388 (KLR)
Republic of Kenya
Tribunal Case E1079 of 2024
Gakuhi Chege, Chair & J Osodo, Member
August 29, 2025
Between
Josephat Mwangi Kimani
Tenant
and
Abdulaziz M Behlani
Landlord
and
Sultan Jamal Osman
Agent
Ruling
A. Introduction & Analysis of Pleadings
1.This matter arises from a Reference filed by the Tenant, Josephat Mwangi Kimani, dated 27th September 2024, together with a Notice of Motion of even date brought pursuant to Sections 2, 4 and 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya. The subject premises are known as Smart Butchery, Shop No. 2, Seeb Apartments, Donholm, constructed on Land Reference Numbers 82/6643, 6644 and 6645, Nairobi.
2.In his Reference, the Tenant complained that the 2nd Respondent, who described himself as the agent of the Landlord, had issued him with a defective termination notice dated 16th July 2024, threatened him with illegal eviction, and denied him quiet possession of the premises. He contended that the notice did not specify the particular premises to which it related, that the 2nd Respondent had no locus standi as he relied on a backdated and unregistered Power of Attorney, and that the entire process was designed to evict him unlawfully.
3.On 13th November 2024, the Tenant filed an Amended Notice of Motion together with an amended Supporting Affidavit in which he sought for enlargement of time and leave for the Reference and Application to be deemed as properly filed out of time. The Tenant thereafter filed a Further Affidavit dated 5th May 2025 reiterating his allegations, insisting that the Power of Attorney relied upon by the Respondents was forged and inadmissible.
4.In opposition, the Landlord’s agent, Sultan Jamal Osman, swore a Replying Affidavit on 22nd April 2025 in which he deponed that he held a duly registered Power of Attorney dated 18th July 2023 and registered on 19th July 2023, thereby authorizing him to act on behalf of the Landlord. He annexed the said Power of Attorney, marked as “SJO-1”, and explained that by virtue of this authority, he issued the Tenant with a termination notice dated 16th July 2024 requiring him to vacate by 1st October 2024.
5.He contended that the Tenant received the notice but failed to lodge any Reference within the statutory one-month period prescribed under Section 6(1) of the Act, and instead filed his Reference on 2nd October 2024 after the effective date of termination, rendering the tenancy extinguished by operation of Section 10.
6.The Tribunal record further reflects that on 24th March 2025 interim injunctive orders were issued restraining the Landlord and his agent from interfering with the Tenant’s occupation of the premises pending the hearing of the Reference.
7.The Tenant thereafter filed Written Submissions dated 5th May 2025 in support of his Reference, while the Landlord and Agent filed their joint Written Submissions dated 23rd April 2025 and supplementary submissions in May 2025 opposing the matter.
B. Issues for Determination, Analysis of Evidence, Submissions, Law Applicable & Determination
8.Having considered the pleadings, affidavits, and submissions of both parties, we find that four (4) central issues arise for determination: -a.Whether the Reference filed on 2nd October 2024 is competent in view of Sections 6 and 10 of Cap 301.b.Whether the Power of Attorney dated 18th July 2023 validly authorized the 2nd Respondent to issue the impugned notice.c.Whether the termination notice dated 16th July 2024 is valid and enforceable.d.Who is liable to be pay costs of the suit?
9.Section 4(2) of the Act provides that:
10.Section 6(1) provides that:
11.Section 10 is couched in mandatory terms and provides:
12.Section 12(4) further provides:
13.In his submissions, counsel for the Tenant argued that the notice was incurably defective for failure to specify the premises as required under Section 4(2). He placed reliance on the Court of Appeal decision in Manaver Alibhai t/a Diani Boutique V South Coast Fitness & Sports Centre Ltd [1995-1998] 2 EA 163, where the court held that non-compliance with the statutory form of a notice under Section 4(2) is fatal.
14.In that case, the Court stated that “the jurisdiction of the Tribunal is only invoked by a valid notice, and where such notice is defective, there is no tenancy dispute before the Tribunal.”
15.Counsel further submitted that the 2nd Respondent had no authority to issue the notice since the Power of Attorney he relied upon was unregistered and doctored.
16.On the question of the late filing of the Reference, the Tenant invoked Section 12(4) and urged us to enlarge time, arguing that substantive justice should not be defeated on account of procedural technicalities.
17.In reply, counsel for the Landlord and Agent emphasized the mandatory nature of Section 10. They relied on the decision of the Court of Appeal in Saheb V Hassanally (1973) EA 155, where the Court held that: -
18.Counsel argued that the Tribunal cannot breathe life into a tenancy which has already been extinguished.
19.They also cited Caledonia Supermarket Ltd V Kenya National Examinations Council [2000] eKLR, where the High Court held that timelines under Cap 301 are substantive and not procedural. The Court observed that: -
20.On the validity of the Power of Attorney, the Landlord’s counsel submitted that the 2nd Respondent acted under a registered Power of Attorney dated 18th July 2023. They cited Central Bank of Kenya Ltd V Trust Bank Ltd & 4 Others [1996] eKLR, where the Court stated that: - “fraud and illegality must not only be pleaded but strictly proved to a standard higher than a balance of probabilities, though not as high as beyond reasonable doubt.”
21.In their view, the Tenant had not produced any cogent evidence of forgery, and the Tribunal should accept the Power of Attorney as valid.
22.On the alleged defect in the notice, counsel for the Landlord noted that the Tenant admitted occupation of Shop No. 2 and indeed responded to the notice by letter dated 13th August 2024. They argued that the omission of the title reference did not invalidate the notice, and relied on Saheb v Hassanally (supra) where the Court observed that: -
23.Turning to our analysis, we are satisfied that the termination notice was issued on 16th July 2024 with effect from 1st October 2024. The Tenant admits receipt and response but filed his Reference on 2nd October 2024, one day after the effective date. Section 6(1) is clear that a tenant must file within one month of receipt. Section 10 provides that failure to do so results in automatic termination. These provisions are couched in mandatory terms and leave no discretion to the Tribunal once the deadline lapses.
24.The reasoning in Saheb v Hassanally and Caledonia Supermarket reinforces this position. The Tribunal has no jurisdiction to enlarge time for filing a Reference once the notice has taken effect. Section 12(4) does not confer such jurisdiction in the face of express provisions in Sections 6 and 10.
25.We are also not persuaded that the Tenant has advanced sufficient cause for his delay. His reliance on alleged defects in the notice cannot salvage his case since he has admitted being a tenant of the Respondent and occupying Shop No. 2 in the demised premises. The omission of the L.R. number cannot invalidate a notice that he clearly understood and to which he responded.
26.With respect to the Power of Attorney, we find that the Respondents produced a duly registered instrument. The allegations of forgery were unsupported by expert evidence or documentary proof. Guided by Central Bank v Trust Bank (supra), we hold that the burden of proving fraud was not discharged, and therefore accept the Power of Attorney as valid.
27.Regarding the validity of the notice itself, while the Tenant argued that it failed to specify the premises, the evidence shows that he was in occupation of Shop No. 2 and that the notice was directed to him. In Saheb v Hassanally (supra), the Court held that tenants cannot rely on technical omissions to avoid the operation of valid notices. We adopt that reasoning and find that the notice of 16th July 2024 is valid.
28.On injunctive reliefs, since the tenancy was terminated by operation of Section 10, there is no subsisting tenancy capable of protection. The Court in Giella v Cassman Brown & Co. Ltd [1973] EA 358 held that an injunction will not issue unless an applicant establishes a prima facie case with a probability of success. In this case, no such prima facie case exists.
29.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. We shall award costs to the respondents being the successful parties.
C. Final Orders
30.In conclusion, the following final orders commend to us: -a.The Reference filed by the Tenant is incompetent for having been lodged out of time.b.The termination notice dated 16th July 2024 is valid and effective under Section 10 of Cap 301, and the tenancy stood terminated on 1st October 2024.c.Accordingly, the Tenant’s Reference dated 27th September 2024 and the Amended Notice of Motion dated 13th November 2024 are hereby dismissed with costs.d.The interim orders issued on 24th March 2025 are hereby discharged.e.The Tenant shall vacate and deliver vacant possession of Shop No. 2, Seeb Apartments, Donholm within thirty days from the date of this ruling and in default shall be evicted therefrom by a Licensed Auctioneer with the assistance of the OCS Buruburu Police Station.f.Costs of the Reference and Application are awarded to the Respondents.g.The said costs shall be taxed by the Tribunal’s Deputy Registrar on application.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF AUGUST 2025.HON. GAKUHI CHEGE - (PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO - (PANEL MEMBER)In the presence of: -Ms Mulama for the tenantGisemba for the respondents