Boaz Ongoro t/a Bosnana Mega Sales v One Stop Super Stores Ltd (Tribunal Case E014 of 2025) [2025] KEBPRT 405 (KLR) (3 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 405 (KLR)
Republic of Kenya
Tribunal Case E014 of 2025
J Osodo, Chair & Gakuhi Chege, Member
September 3, 2025
Between
Boaz Ongoro t/a Bosnana Mega Sales
Applicant
and
One Stop Super Stores Ltd
Respondent
Ruling
A. Dispute Background
1.This dispute was commenced by a Reference dated 26th February 2025 under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 of the Laws of Kenya, in which the tenant complains that the landlord issued an irregular notice to terminate tenancy as well as an irregular oral notice to increase rent.
2.The tenant/applicant filed a notice of motion under a certificate of urgency dated 26th February 2025 in which he sought for the following orders; -i.That the Notice of Termination of Tenancy dated 27th January 2025 be suspended.ii.That the oral notice of rent increment be suspended.iii.That the Respondent be restrained from evicting, harassing or interfering with the Applicant’s quiet possession of the premises pending hearing and determination of the reference.iv.That the OCS Oyugis Police Station be directed to ensure law and order.v.That costs of the application be provided.
3.The application is supported by an affidavit of even date in which the tenant deposes that he is the lawful tenant in the premises known as Bosnana Mega Sales, and annexed a copy of his national ID (BO-1) to confirm his identity. He avers that the tenancy is a controlled tenancy under Cap 301 and that on 1st February 2025, the Landlord/Respondent served him with an irregular and unlawful notice of termination of tenancy dated 27th January 2025 (annexed as BO-2). He states that the notice was defective as it allowed less than the statutory two months, purporting to take effect on 1st March 2025. He further asserts that the notice was anchored on a tenancy agreement which had lapsed on 31st May 2023 after running for two years from 15th June 2021.
4.The Applicant also depones that on the same day, 1st February 2025, the Respondent issued him with an illegal oral notice of rent increment from KES. 45,000 to KES. 60,000, also to take effect on 1st March 2025. He emphasizes that he has never defaulted in rent payment and annexed rent payment transaction details (BO-3) showing that he is not in arrears. He contends that the oral rent increment was meant to reinforce the termination notice and force him out of the premises under duress.
5.He adds that he had been previously permitted by the Respondent to make renovations to the premises for improved security and usability, which he undertook without objection. However, in recent times, he alleges that the Respondent has been hiring goons to cause commotion at the premises, intimidate his customers, and disrupt business operations. He further alleges that the Respondent has threatened to forcibly evict him on 1st March 2025 if he had not vacated, and he feared that such an eviction would be violent.
6.The Applicant states that he has invested millions of shillings into his business and built significant goodwill, which the Respondent intends to take advantage of by illegally evicting him.
7.On 27th February 2025, the Tribunal issued interim orders of injunction against the respondent pending the determination of this suit.
8.The application is opposed vide a replying affidavit by the respondent’s director, Nilesh Bhai Rajibhai Patel, dated 26th March 2025 in which he deposes that the Applicant is no longer in occupation of the premises, having allegedly sublet them to one David Omondi. To support this, he annexed a copy of a business permit marked ‘NBP 1’. He contended that by subletting or parting with possession of the premises, the Applicant had no locus standi to bring the matter before the Tribunal and therefore had not approached the Tribunal with clean hands.
9.The Respondent further denied the allegations that he or the company had ever hired goons to harass or interfere with the Applicant. He asserted that there was no evidence to support such serious allegations. He added that in any case, since the Applicant was not in possession of the premises, there was no opportunity for the Respondent or its agents to have harassed him.
10.The tenant/applicant filed a further affidavit dated 16th April 2025 in which he reaffirmed that he is in possession and occupation of the premises forming the subject of the dispute, and it was on that basis that the Respondent served him with a notice to terminate the tenancy. He argued that if he were not in occupation, the Respondent would have no basis to issue him with notices of termination or rent increment.
11.The Applicant further deposed that the Respondent has not filed or produced any evidence before the Tribunal to demonstrate that he is not in occupation, or that another person occupies the premises. He denied any connection between himself and the business permit exhibited by the Respondent, arguing that it bears no nexus to the tenancy in dispute. He added that even if another person holds a business permit, he has a legal right to use it for business operations, especially in partnership arrangements where one person secures the premises while another ensures compliance with licensing requirements.
12.He explained that on occasions when he travels or is overwhelmed, he requests friends to watch over his shop and sell on his behalf, which does not amount to subletting. He accused the Respondent of being untruthful about his occupancy and of escalating matters by sending rowdy young men to disrupt his business. He stated that in such instances, due to fear and concern for their safety, he and his customers were unable to collect photographic evidence of the goons.
13.Finally, the Applicant declared that he is amenable to an inspection by the Tribunal to confirm his possession and occupation of the premises.
14.Parties were directed to file their respective written submissions and both complied with the tenant filing his dated 16th April 2025 and the landlord filing his dated 13th June 2025. We shall consider both submissions as we deal with the issues for determination.
B. Issues for Determination and Analysis
15.The following issues arise for determination; -a.Whether there exists a landlord/tenant relationship between the parties.b.Whether the tenant/applicant is entitled to orders sought in the application dated 26th February 2025c.Who shall bear the costs of the application?
Issue (a) Whether there exists a landlord/tenant relationship between the parties.
16.The Respondent submitted that the tenancy agreement between the parties expired on 31st December 2024 and has not been renewed. It was further alleged that the Applicant had sublet the premises to one David Omondi and thus lacked locus standi. Annexure ‘NBP 1’, a business permit, was produced to support this claim.
17.The Applicant, however, maintained that he is still in occupation and possession of the premises, noting that the very notice of termination dated 27th January 2025 was addressed to him and his business, thereby acknowledging his status as tenant. Importantly, the Applicant produced rent payment transaction details annexed as ‘BO-3’, confirming payment of rent for December 2024, January 2025, and February 2025. These payments, received and not contested, are clear evidence of a subsisting landlord/tenant relationship.
18.Under Section 2 of Cap 301, a controlled tenancy includes situations where a tenancy has expired but the tenant continues in possession with the consent of the landlord. In Eben Hardware Hepbjay Ltd v Mugo & Another (BPRT E063 of 2023), the Tribunal held that the existence of possession and continued payment of rent are key indicators of an active tenancy relationship.
19.We therefore find that a landlord/tenant relationship continues to exist between the parties, and the tenancy remains protected under Cap 301.
Issue (b) Whether the tenant/applicant is entitled to orders sought in the application dated 26th February 2025.
20.The Applicant contends that the Notice of Termination of Tenancy dated 27th January 2025 is irregular and unlawful as it contravenes Section 4 of Cap 301. The notice was to take effect on 1st March 2025, thus giving less than the two months required by law. Further, it was not issued in the prescribed statutory form. He also challenges the oral rent increment notice from KES. 45,000 to KES. 60,000 as illegal and made in bad faith.
21.The Respondent maintains that the tenancy agreement expired on 31st December 2024 and was not renewed. He was further alleged that the Applicant had sublet the premises and is no longer in possession. In addition, the Respondent denies ever hiring goons or interfering with the Applicant’s business.
22.Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 provides that a termination notice must be in the prescribed form and must give not less than two months’ notice. The Court in Manaver N. Alibhai v South British Insurance Co. Ltd [1966] EA 128 held that:
23.The notice before this Tribunal, dated 27th January 2025, was not in the prescribed form and failed to give the requisite statutory period. It is therefore invalid.
24.The Tribunal is also enjoined under Section 12 of Cap 301 to protect tenants from unlawful eviction, harassment, or irregular conduct by landlords. In Mitu Mwongela v Philip Samanta [2021] eKLR, the Tribunal underscored this protective mandate, stating that:
25.Similarly, in Republic v Chairperson Business Premises Rent Tribunal at Nairobi (D. Mochache) Ex-parte Kenya Safari Lodges & Hotels Ltd [2012] eKLR, the High Court emphasized that the Tribunal is empowered to preserve the status quo pending the hearing and determination of a reference.
26.Applying these principles, the oral rent increment notice from KES. 45,000 to KES. 60,000 is equally unlawful. The Act contemplates only written notices in the prescribed form. An oral increment has no basis in law and is void ab initio.
27.In light of the above, we find that the Notice of Termination of Tenancy dated 27th January 2025 and the oral notice of rent increment are unlawful, irregular, and invalid. The Applicant has established a prima facie case and is entitled to the protective orders sought. The balance of convenience also tilts in his favour to safeguard his continued occupation and prevent irreparable harm to his business.
Issue (c) Who shall bear the costs of the application?
28.The general rule is that costs follow the event. Having succeeded in showing that the notices were unlawful and that he remains a lawful tenant, the Applicant is entitled to costs. The Respondent shall therefore bear the costs of this application.
C. Orders
29.In conclusion, the Tribunal makes the following orders:a.The Notice of Termination of Tenancy dated 27th January 2025 is declared invalid, unlawful and of no effect.b.The oral notice of rent increment from KES. 45,000 to KES. 60,000 is declared unlawful.c.The tenant’s application dated 26th February 2025 is hereby allowed as prayed.d.Costs of KES. 30,000 to the tenant to be offset against the rent accounte.Reference dated 26th February 2025 is settled in terms and file is marked closed.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 3RD SEPTEMBER 2025.HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)HON GAKUHI CHEGE - (PANEL MEMBER)BUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of parties.