Ouko v Ogosa (Tribunal Case E028 of 2025) [2025] KEBPRT 402 (KLR) (2 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 402 (KLR)
Republic of Kenya
Tribunal Case E028 of 2025
Gakuhi Chege, Chair & J Osodo, Member
September 2, 2025
Between
Michael Odhiambo Ouko
Landlord
and
Alloyce Omondi Ogosa
Tenant
Ruling
A. Introduction
1.The Tribunal is called upon to determine the Tenant’s Notice of Preliminary Objection dated 3rd June 2025. The objection is premised on Section 9(3)(c) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya.
B. Dispute Background & Analysis of Pleadings
2.The dispute arises from a controlled tenancy between the Landlord, Mr. Michael Odhiambo Ouko, and the Tenant, Mr. Alloyce Omondi Ogosa, in respect of premises situate on Kisumu/Riat/1976/Dago. The tenant has occupied the premises since 2022 and has operated a business thereon.
3.According to the Landlord, the Tenant fell into rent arrears and undertook unauthorized construction of a bar structure on the premises without the Landlord’s consent. The Landlord issued a notice of termination of tenancy dated 19th November 2024 under Section 4(2) of Cap 301 seeking to recover vacant possession.
4.The Tenant contends that there have been multiple suits between the parties before this Tribunal, including BPRT Nos. E001 of 2024, E015 of 2024 and E030 of 2024. In those proceedings, the Tenant asserts that rulings were made in his favour and costs awarded. He further claims that the Landlord agreed not to pursue the notice of November 2024 in exchange for monthly repayments of arrears.
5.The Tenant now raises a Preliminary Objection contending that the present proceedings are barred by Section 9(3) of Cap 301, on the basis that the Tribunal had previously determined disputes in respect of the same premises.
6.The Landlord, on the other hand, argues that the notice relied upon by the Tenant was defective and was never determined on its merits, and therefore cannot give rise to the statutory bar under Section 9(3)(c).
C. Issue for Determination
7.The issue for determination is whether the Tenant’s Preliminary Objection dated 3rd June 2025 is sustainable in light of the history of disputes between the parties and the legal framework under section 9(3)(c) of Cap 301.
D. Analysis of the Law & Determination
8.Section 9(3)(c) of Cap 301 provides that the Tribunal shall not entertain a reference by a tenant against a landlord’s notice where the Tribunal has made a determination upon a reference by the same tenant relating to the same tenancy and notice.
9.This provision presupposes the existence of a valid notice which has been adjudicated upon and conclusively determined. The purpose is to prevent multiplicity of proceedings over the same notice and tenancy.
10.In the present case, while the parties have indeed been involved in several disputes before this Tribunal, the notice of 19th November 2024 has not been subjected to a substantive determination on its merits. The earlier proceedings were either disposed of on technical grounds or involved separate causes of action.
11.The Court of Appeal in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 emphasized that a preliminary objection must raise a pure point of law. It cannot be sustained where factual disputes exist or where the underlying notice itself is defective and unenforceable.
12.Similarly, in Saheb v Hassanally (1973) EA 20, the court observed that statutory notices must strictly comply with the provisions of Cap 301 and where such notices are defective, they cannot be the foundation of proceedings or statutory bars.
13.Guided by these principles, we find that since the earlier notice was defective and never determined on its merits, the Tenant cannot rely on Section 9(3)(c) to oust the present reference.
E. Final Orders
14.The Tenant’s Notice of Preliminary Objection dated 3rd June 2025 is hereby dismissed with costs to the Landlord.
15.The matter shall proceed to hearing on the merits in respect to the Landlord’s notice of 19th November 2024.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF SEPTEMBER 2025HON. GAKUHI CHEGE - (PANEL CHAIRPERSON)HON. JOYCE AKINYI OSODO - (PANEL MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of: -Ms. Nyambeki for LandlordNo appearance for tenant