Omar v Bihi (Tribunal Case E595 of 2025) [2025] KEBPRT 390 (KLR) (Civ) (29 August 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 390 (KLR)
Republic of Kenya
Tribunal Case E595 of 2025
J Osodo, Chair & Gakuhi Chege, Member
August 29, 2025
Between
Omar Mohamed Omar
Landlord
and
Mohamed Bihi
Tenant
Ruling
Dispute Background
1.The Landlord/Applicant moved this Tribunal vide a Notice of Motion dated 27th May 2025, supported by his affidavit of even date, seeking a certificate permitting him to levy distress against the tenant for alleged rent arrears of KES. 1,158,350, an order directing the OCS Eastleigh North Police Station to ensure compliance, and costs of the application.
2.In his Supporting Affidavit, the landlord averred that the tenant entered into a tenancy in August 2019 at KES. 50,000, which was later reviewed on 11th February 2021 to KES. 75,000, subject to increments. He annexed a copy of the tenancy agreement marked ‘OMO-1’. He further deposed that the Tribunal in BPRT/E456/2023 fixed the rent at KES. 78,750 with effect from 16th December 2024 [annexure ‘OMO-2’ is a copy of the said judgment]. He exhibited Mpesa statements [annexure ‘OMO-3’] and a rent account [annexure ‘OMO-4’] to show default, alleging the tenant irregularly paid KES. 50,000 and was in arrears of KES. 1,158,350.
3.The Tenant opposed the application through a Replying Affidavit sworn on 8th July 2025, where he disputed the arrears claimed, stating his own computation put them at KES. 718,434, and offered to clear this by monthly instalments of KES. 10,000. He contended that the tenancy agreement of 11th February 2021 expired in February 2024, after which rent reverted to KES. 50,000, which he continued to pay. He annexed a letter dated 16/06/2025 proposing a payment plan, marked “MB-B”.
4.The Landlord filed a Further Affidavit dated 28th July 2025, maintaining that the arrears stood at KES. 1,158,350 as computed, that the tenancy had not lapsed, and that the Tribunal’s judgment fixing rent at KES. 78,750 remained binding until varied.
5.By consent, the application was disposed of by way of written submissions. The Landlord’s submissions dated 28th July 2025 reiterated his right to distress under Section 3 of the Distress for Rent Act and cited Omondi v Kassam [Civil Appeal E018 of 2024] and Samuel Kipkori Ngeno & Another v Local Authorities Pension Trust [2013] eKLR. The Tenant’s submissions dated 30th July 2025 urged the Tribunal to strike out the application for want of a reference under Section 12[4] of Cap 301 and Regulation 5 of the Tribunal Rules, citing Patel v Malca Amit Ltd [BPRT E070/2022] and Ess Pee Ess Investment Ltd v Karanja [BPRT E304/2023].
B. Issues for Determination and Analysis
6.The Tribunal identifies the following issues for determination:a.Whether the Landlord is entitled to the orders sought in the application.b.Who shall bear the costs of the application?
Issue [a] Whether the Landlord is entitled to the orders sought
7.The tenant, through submissions, argued that the application is incompetent for want of a reference. It is true that Regulation 5 of the Tribunal Rules requires proceedings to be commenced by a reference. In Patel v Malca Amit Ltd [2022] KEBPRT 141, the Tribunal held that applications without a reference are akin to motions filed without a plaint.
8.However, guided by Article 159[2][d] of the Constitution of Kenya, this Tribunal must administer justice without undue regard to procedural technicalities. The omission of a reference cannot override the substantive dispute of arrears, especially where the tenant admits owing KES. 718,434. We therefore decline to strike out the application on this ground.
9.On the substantive issue, the landlord relies on Section 3 of the Distress for Rent Act, Cap 293, which entitles landlords to levy distress for rent in arrears. This right has judicial affirmation in Omondi v Kassam & Another [Civil Appeal E018 of 2024] [2024] KEHC 10703 [KLR],wherein the High Court held as follows: -
10.Similarly, in Samuel Kipkori Ngeno & Another v Local Authorities Pension Trust [2013] eKLR, the court emphasized that: -
11.The tenant admitted being in arrears but claimed the correct rent post-February 2024 was KES. 50,000. The landlord disputes this, insisting that rent remained at KES. 78,750 in line with the Tribunal’s earlier decision.
12.The Tribunal has perused its judgment in BPRT/E456/2023 delivered on 16th December 2024 wherein Order [c] expressly stated:
13.This finding is binding upon the parties and remains in force. Consequently, the tenant’s argument that rent reverted to KES. 50,000 after expiry of the tenancy agreement cannot be sustained. The landlord’s computation of arrears based on KES. 78,750 is valid.
14.We therefore find that the arrears stand at KES. 1,158,350 and the landlord is entitled to levy distress for the said sum as prayed.
Issue [b] Who shall bear the costs
15.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. Having succeeded in his application, the landlord is entitled to costs.
C. Final Orders
16.In conclusion, the Tribunal makes the following orders; -a.The Landlord’s application dated 27th May 2025 is allowed as prayed.b.The landlord shall not pay further court fees on the distress order in view of the long delay by the tenant to pay rent for the occupied premises.c.Costs of KES. 30,000 are awarded to the landlord/applicant.d.File is ordered closed.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH AUGUST 2025HON. JOYCE AKINYI OSODO[PANEL CHAIRPERSON]BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE[MEMBER]In the presence of:Otinga for TenantDayib for Landlord