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Nene & another v Ndambuki & 5 others (Tribunal Case E607 of 2025) [2025] KEBPRT 392 (KLR) (Civ) (21 August 2025) (Ruling)

Nene & another v Ndambuki & 5 others (Tribunal Case E607 of 2025) [2025] KEBPRT 392 (KLR) (Civ) (21 August 2025) (Ruling)
Citation
Nene & another v Ndambuki & 5 others [2025] KEBPRT 392 (KLR)
Media Neutral Citation
[2025] KEBPRT 392 (KLR)
Court
Business Premises Rent Tribunal
Outcome
Allowed
Case number
Tribunal Case E607 of 2025
Judges
N Wahome, Joyce Murigi
Judgment date
21 August 2025
Language
English
Type
Judgment
Original source file
Download DOCX (21.7 KB)
Collections
Date published
05 September 2025
Case action
Ruling
Court division
Civil
Filing county
Nairobi
Order
That the reference and notice of motion application both dated 29/4/2025 allowed in terms that the Tenant shall be allowed complete quiet possession of the demised premises otherwise known as cheers Bar.The rents for between 2/3/2025 and 12/6/2025 are not payable and if paid, the same to apply to future months until it is exhausted. The Tenant granted costs assessed at Kshs.20,000/- to be offset from rent payable. Those are the orders of the court
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1.The Tenant originated this suit by the reference dated 29/5/2025. The same is pegged on Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) hereinafter referred to as “the Act”. The Tenant has raised the following grievances in the said reference,-“The Landlords have issued incurably defective notice to vacate and locked five rooms of the Business Premises contrary to Cap. 301”.
2.Accompanying the reference is the notice of motion application of the even date. In summary it sought for the following orders,-i.That the Application be certified urgent and that the respondents be commanded to allow the Tenant free access to her premises.ii.The Respondents be ordered not to let out the demised premises to any third party and to allow her complete quiet possession of the demised premises.iii.That any ensuing orders be enforced by the OCS Tala Police Station and that costs of this application be proved for.
3.The Tenant also rendered oral submissions in court on the 8/7/2025. On their part, the respondents filed the Replying Affidavit dated 11/6/2025 and rendered oral submissions in opposition to the tenants application through their counsel M/S P. Kioko.
4.We do confirm having perused all the pleadings by the parties, the evidence attached and the oral submissions rendered in court. In our view, this application shall be determined on whether the notice of termination of tenancy is lawful or not.
5.The said notice is founded on the letter dated 8/4/2025. For clarity the said notice is by a letter. We doubt that the same is in compliance with Section 4(2) of the act. The same provides that:-“a landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the Tenant, any term or condition in, or right or service enjoyed by the Tenant under, such a tenancy shall give notice in that behalf to the Tenant in the prescribed form”.
6.The prescribed form alluded to above is provided for by Regulation 4(i) of the Regulations, to the Act. The same states that:-“A notice under Section 4 (2) of the Act by a Landlord shall be in form A in the schedule to these Regulations”.
7.We also doubt that the said purported notice of termination had satisfied the requirements of Section 7(1) of the Act, the same provides thus:-“Where under Section 4 of this Act served a notice of termination of a controlled tenancy on the Tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice”,
8.The ground given in the letter of notice to vacate dated 8/4/2025 merely states the following as the ground of termination,-“This vacate notice is due to a notice given by the public Health office dated 31/1/2025 to renovate the premises. In case of any concerns or questions you can reach out the landlords”.
9.In our view that is not a ground for termination recognized by the Act and in particular Section 7 (1) thereof. Renovations do not require a Tenant to deliver vacant possession. Section 7(1) (f) is very categorical, it provides that:-“That on termination of the Tenancy the Landlord intends to demolish or reconstruct the premises comprised in the Tenancy or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises”.
10.We would therefore dismiss the notice of termination dated 8/4/2025 for being unlawful. In this we rely on the case of Fredrick Mutua Mulinge T/A Kitui Uniform v Kitui Teachers Housing Co-operative Society [2017] eKLR where the court held that,-“It is clear from the foregoing authorities that the Tenancy notice dated 28/6/2024 was null and void for failing to give the Appellant the two months notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1/7/2014 through which the respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act” (emphasis mine)
11.Further in the case of Manaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Ltd, Civil appeal No. 203 of 1994 the court held that:-“A controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the Tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Acts. These provisions include the giving of notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the Tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the Landlord to ask the Tenant to notify him in writing whether or not the Tenant agrees to comply with the notice”.
12.There is no rebuttal by the Landlord that the Tenant was denied access to the demised premises between he 2/3/2025 and the 13/6/2025 when the same were re-opened. The lock down of the premises is not known to the law and in particular Cap. 301 frowns on such conduct. The alteration of the terms of the tenancy was a kin to eviction of the tenant without following the due process of the law. We therefore find that the Tenant is not liable to pay the rent for between 2/3/2025 and 12/6/2025 when the premises were locked. If any rent is paid for the material months, the same shall be applied to future months.
13.Though the Tenant was entitled to damages for the illegal barricade of her premises and for loss of business, the same is not pleaded and the Tenant has not in any way sought for such relief. To qualify for the clam, the Tenant required to plead and prove the same.
14.From the foregoing, it is apparent that looking at this Ruling, all the issues at hand have been effectively decided. We therefore resolve the reference dated 29/4/2025 in the same terms.
15.On costs, we employ the wisdom of Section 12(1) (k) of the Act and award costs to the Tenant who is the successful party.
16.In conclusion, we make the following orders,-i.That the reference and notice of motion application both dated 29/4/2025 are allowed in terms that the Tenant shall be allowed complete quiet possession of the demised premises otherwise known as cheers Bar.ii.That the rents for between 2/3/2025 and 12/6/2025 are not payable and if paid, the same to apply to future months until it is exhausted.iii.That the Tenant is granted costs assessed at Kshs.20,000/- to be offset from rent payable.Those are the orders of the court.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF AUGUST, 2025.HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMSIES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of the Tenant and M/S P. Kioko for the Respondents.HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMSIES RENT TRIBUNAL. BPRT.
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