Kirubi v Ngore (Tribunal Case E158 of 2025) [2025] KEBPRT 406 (KLR) (5 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 406 (KLR)
Republic of Kenya
Tribunal Case E158 of 2025
J Osodo, Chair & Gakuhi Chege, Member
September 5, 2025
Between
Cyrus Ndungu Kirubi
Landlord
and
Nicholas Ngore
Tenant
Ruling
A. Dispute Background
1.This matter was commenced by the Landlord’s Reference brought under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, dated 12th May 2025 with a complaint that on 13th February 2025, the tenant was issued with a notice to terminate tenancy and that he did not file a reference to oppose the said notice, nether did he comply by vacating the suit premises. In addition, the landlord complains that the tenant has not been paying rent on time and that arrears stood at KES. 36,000 as of May 2025
2.The landlord filed a Notice of Motion of even date seeking payment of rent arrears of KES. 36,000, vacant possession or, in default, leave to break open the premises and recover possession, waiver of 10% duty filing fees on distress, assistance of the OCS Kadzandani Police Station or the area Chief and costs.
3.The Landlord’s application is supported by the Affidavit sworn on 12th May 2025, exhibiting annexures CNK–1 (Landlord’s Notice to Terminate Tenancy dated 13th February 2025) together with documents showing ownership of the premises and the monthly rent payable (KES. 18,000).
4.The landlord in his affidavit deposes that the tenant did not file a reference to oppose the said notice of termination of tenancy and neither did he comply by vacating the suit premises.
5.He states that the notice was served on grounds that the landlord intends to reconstruct the premises, and that he cannot do so without obtaining vacant possession.
6.He adds that the suit premises are in a dilapidated condition hence the need for some repairs and reconstruction to make it conducive for business operations.
7.In response, the Tenant filed a Replying Affidavit dated 3rd June 2025 in which he contends that the Landlord’s complaint is baseless since, after the effective date of the impugned notice, the Landlord actually received rent from him, thereby confirming that the landlord–tenant relationship was never terminated. In support, he annexes evidence of rent payment marked Exhibit ‘NN-1’.
8.He deposes that he has separately filed an application for leave to file a reference out of time, and annexes a copy marked Exhibit ‘NN-2’. He explains that he only became aware of the new Landlord on 19th March 2025, and therefore the notice of termination issued on 13th February 2025 was issued by a person he considered a stranger. He annexes evidence of this fact marked Exhibit ‘NN-3’.
9.According to the Tenant, the termination notice is fatally defective since it was issued before he was formally notified of the new landlord vide the letter dated 19th March 2025. He reiterates that the action of issuing a notice by a stranger renders it invalid.
10.The Tenant further avers that the Landlord has no genuine intention of carrying out reconstruction of the premises, but rather seeks to increase rent and grant possession to another tenant. He notes that his neighbour in shop No. 1 has not been issued with any termination notice.
11.He maintains that he has not agreed to the Landlord’s termination notice and has therefore filed an application for leave to file a reference out of time. He further annexes a draft preliminary objection marked Exhibit ‘NN-4’, through which he challenges the competence of the notice.
12.The Tenant states that he had been paying rent up to April 2025 to his former landlord and produces receipts annexed as Exhibit ‘NN-5’. He therefore disputes the claim that he has been persistently in arrears.
13.He also asserts that the Landlord has discriminated against him by targeting him alone, while other tenants in the same premises have not been issued with termination notices. He argues that this demonstrates bad faith on the part of the Landlord.
14.The tenant filed the Notice of Motion of the same date, seeking leave to file his reference out of time and that costs of the application be in the cause.
15.The application is supported by an affidavit dated 3rd June 2025 in which he deposes that his application for leave to file a Reference out of time, is necessary so that all issues in controversy, together with the remedies he seeks, can be comprehensively addressed by the Tribunal. Annexed thereto and marked Exhibit ‘NN-1’ is a copy of the draft Reference he intends to file.
16.The Tenant further deposes that his proposed Reference arises from the same facts already before the Tribunal, and no prejudice will be occasioned to the Landlord/Respondent who is well aware of the dispute.
17.He states that he only became aware of the new Landlord on 19th March 2025 when he received formal notification of the change of landlord. He annexes a copy of this notification marked Exhibit ‘NN-2’. He argues that the termination notice issued on 13th February 2025 was therefore issued by a stranger since, at that point, he was still paying rent to his former landlord.
18.The Tenant urges the Tribunal to exercise discretion to allow his application, noting that pre-trial directions had not been firmly issued and the suit had not yet been heard. He avers that his application has been brought in good faith and solely with the intention of capturing all the real issues for adjudication on their merits.
19.He adds that it is in the interest of justice and fairness that he be granted leave. The delay in filing a Reference was due to the fact that he only knew of the change of landlord after 19th March 2025. He emphasizes that at the time of issuance of the notice on 13th February 2025, he was still paying rent to his former landlord and therefore genuinely believed there was no need to file a Reference.
20.To support this, the Tenant annexes Exhibit ‘NN-3’, being evidence of payment to his former landlord, and Exhibit ‘NN-4’, being evidence of payment to the new landlord after the changeover.
21.The Landlord filed a Replying Affidavit dated 21st August 2025 in opposition to the Tenant’s Notice of Motion dated 3rd June 2025 in which he depones that the Tenant has been uncooperative and unruly. According to him, since service of the impugned notice on 13th February 2025, the Tenant has only paid rent for two months despite occupying the premises for six months. He further avers that there was no written tenancy agreement or rent deposit, and his attempts at an amicable solution have gone unanswered.
22.The Landlord explains that the Tenant, together with four other tenants, had earlier been issued with termination notices by the former landlady on 5th December 2024, copies of which are annexed as Exhibit ‘PP1’. He states that when the tenants failed to heed those notices, he personally issued a fresh notice on 13th February 2025. He therefore denies being a “stranger” to the Tenant. He adds that four out of five tenants vacated by end of April 2025.
23.He further states that on 13th February 2025, he also served the Tenant with a rent pay point change notice, annexed as Exhibit ‘PP3’, but the Tenant dishonoured it. He argues that this proves that the Tenant was fully aware of the change in ownership and cannot claim otherwise.
24.The Landlord describes as false and malicious the Tenant’s allegation that he has no intention of reconstructing the premises. He points out that the other four tenants already vacated in April 2025, leaving only the tenant herein, whose continued occupation is blocking reconstruction. He maintains that the premises are of no economic value while the Tenant remains in possession.
25.He also disputes the Tenant’s assertion that shop number 1 neighbour had not vacated, explaining that the neighbour, Job Munjuri, was served with a vacation notice and did vacate in April 2025. He confirms that he is ready to produce that notice to demonstrate truthfulness.
26.He accuses the Tenant of dishonesty in continuing to pay rent to the former landlady after change of ownership. He contends that this was a deliberate ploy to create confusion and avoid rent obligations. He says that the Tenant received both notice of change of ownership and rent pay point notice from the former landlady on 19th March 2025, annexed as Exhibit ‘PP4’, but chose to dishonour them.
27.On discrimination, the Landlord maintains that the allegation is false, since all tenants were served with notices and, except for the tenant herein, they vacated without incident. He argues that the tenant is using false claims to delay his eviction.
28.Finally, the Landlord states that the Tenant owes KES. 108,000 in unpaid rent as of the date of the affidavit, a figure that continues to rise monthly.
29.On 5th June 2025 the Tribunal directed that both the Landlord’s and Tenant’s applications be heard and determined together by way of written submissions. Only the tenant filed his written submissions dated 8th July 2025. We shall consider these submissions together with all other pleadings filed as we deal with the issues for determination.
B. Issues for Determination and Analysis
30.The following issues arise for determination; -a.Whether the Notice to terminate tenancy dated 13th February 2025 is valid and legal.b.Whether the landlord is entitled to the orders sought in the application dated 12th May 2025c.Whether the Tenant is entitled to the orders sought in the application dated 3rd June 2025d.Who shall bear the costs of the suit?
Issue (a) Whether the Notice to terminate tenancy dated 13th February 2025 is valid and legal.
31.The Landlord relies on the notice dated 13th February 2025 which was due to take effect on 13th April 2025. The Tenant contends that the notice was invalid because it was issued before he was formally introduced to the new landlord, claiming ignorance of the ownership change until 19th March 2025.
32.However, several pieces of evidence rebut this claim. First, the Landlord’s Supporting Affidavit dated 12th May 2025 annexes a letter dated 13th February 2025 directing the Tenant to pay rent to the new landlord. Secondly, the Tenant himself acknowledges receipt of a formal letter dated 19th March 2025 confirming the change of landlord (Exhibit ‘NN–2’).
33.Most significantly, the Landlord’s Replying Affidavit dated 21st August 2025 annexes termination notices dated 5th December 2024 (Exhibit ‘PP1’) which were issued by the former landlady, Agnes Okoth, to all tenants. These notices expressly indicated that she had sold the premises to the new Landlord and that the new owner required vacant possession. This clearly demonstrates that the Tenant was aware of the impending change in ownership well before February 2025.
34.Furthermore, when the Tenant attempted to continue paying rent to the former landlady in April and May 2025, those payments were reversed, underscoring that the old landlord was no longer recognized as payee. The Tenant eventually remitted KES. 36,000 to the new Landlord on 30th May 2025, which he annexed.
35.In light of these facts, the Tribunal finds that the Tenant was fully aware of the change of ownership and cannot credibly maintain that the 13th February 2025 notice was issued by a stranger. The notice was valid in both form and capacity.Issue (b) Whether the landlord is entitled to the orders sought in the application dated 12th May 2025
36.Having found that the termination notice dated 13th February 2025 (CNK–1) was valid, the Tribunal is satisfied that the Landlord complied with the requirements of Section 4(2) of Cap 301. The Tenant did not file a Reference within the statutory period.
37.In Manaver N Alibhai t/a Diani Boutique – vs- South Coast Fitness & Sports Centre Limited Civil Appeal No. 203 of 1994 it was held as follows: -
38.Guided by this authority, the Tribunal finds that once the valid notice took effect unopposed, the Landlord became entitled to possession.
39.The Tenant’s argument on ignorance of the landlord’s identity are not persuasive. He was served with termination notices by the old landlady on 5th December 2024 (Exhibit ‘PP1’), received the letter of 13th February 2025 annexed to the Supporting Affidavit, and formally acknowledged the 19th March 2025 letter (Exhibit ‘NN–2’). He nevertheless failed to lodge a Reference within time.
40.The Tribunal also notes that although arrears had accrued, the Tenant eventually made a lump-sum payment of KES. 36,000 on 30th May 2025. That payment cleared the arrears but did not cure the failure to file a Reference.
41.Accordingly, the Tribunal shall order that the Landlord is entitled to vacant possession of the suit premises and the application dated 12th May 2025 shall be allowed on that term.
Issue (c) Whether the Tenant is entitled to the orders sought in the application dated 3rd June 2025
42.The Tenant sought leave to file a Reference out of time and injunctive protection. Having found that the notice of 13th February 2025 was valid, and further noting that the Tenant had knowledge of the new Landlord as early as December 2024 and formally by March 2025, the Tribunal is not persuaded that sufficient cause has been shown for extension of time.
43.The application for leave to file a Reference out of time is therefore declined. To allow it would defeat the purpose of Section 6 of Cap 301, which requires prompt challenge of notices.
44.Consequently, the Tenant cannot claim ongoing protection. The tenant’s application dated 3rd June 2025 is therefore dismissed.
Issue (d) Who shall bear the costs of the suit?
45.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. We shall order costs of the suit to the landlord.
C. Orders
46.In conclusion, the following final orders commend to us; -a.The notice to terminate tenancy dated 13th February 2025 is declared valid and legal.b.The tenant’s application dated 3rd June 2025 is dismissedc.The landlord’s application dated 12th May 2025 is allowed in the following terms; -i.The tenant shall clear all rent arrears owing to the landlord and vacate the suit premises within 30 days hereof, and in default shall be forcibly evicted therefrom by a Licensed Auctioneer who shall be provided with security by the OCS Kadzandani Police Station or the area chief.ii.The 10% further court fees on distress shall be waivediii.Costs of KES. 10,000 are awarded to the landlord.d.The reference dated 12th May 2025 is settled in terms and file is marked closed.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF SEPTEMBER 2025HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE(PANEL MEMBER)In the presence of:Abaja h/b for Omwenga for TenantN/A for Landlord