Lwoya v Ali & 2 others; Mbale Muslim Mosque Committee (Interested Party) (Suing through its Official and Trustee Zubeir Shogobe) (Tribunal Case E024, E025 & E027 of 2024 (Consolidated)) [2025] KEBPRT 412 (KLR) (17 September 2025) (Judgment)
Neutral citation:
[2025] KEBPRT 412 (KLR)
Republic of Kenya
Tribunal Case E024, E025 & E027 of 2024 (Consolidated)
N Wahome, Chair & Joyce Murigi, Member
September 17, 2025
consolidated with case numbers E025 OF 2024 and E 027 OF 2024
Between
Idii Baraka Lwoya
Landlord
and
Hussein Kulane Ali
1st Tenant
Hassan Aliow Maalim
2nd Tenant
Hussein Maalim Ali
3rd Tenant
and
Mbale Muslim Mosque Committee
Interested Party
Suing through its Official and Trustee Zubeir Shogobe
Judgment
1.This Judgement is on the Landlords’ references dated 2/02/2024 against the three tenants. The references were anchored on section 12[4] of the landlord and tenant [shops, hotels and catering establishments] act cap 301 which we herein after refer to as “the act”. The complaint by the landlord was that;-
2.The notices of termination to the tenants on the other hand were all dated 21/11/2023 and were on the grounds and to the effect that;-
3.The landlord had also filed the notice of motion application dated the 24/07/2024 in which he had sought to have the tenants ordered to pay alleged rent in arrears and vacate their respective shops. The application had been opposed by the tenants and the parties had filed their respective submissions and the application had been reserved for ruling on the 25/10/2024.
4.That however, by the applications dated the 1st September, 2024 and 15th October, 2024 respectively, the interested party sought that it be enjoined in this suit as it was also the alleged owner of the suit premises. It also sought for the arrest of the ruling that was to be delivered on the 25/10/2025.The interested was to later and deep into these proceedings file the application dated 11th June, 2025 in which it sought to have the judgement in Vihiga ELC case no E001 of 2023 produced as an exhibit in this matter. The same was by consent of all the parties admitted as an exhibit on the 25th June, 2025.
5.When this matter came up for hearing on the 13th may, 2025, the landlord adopted his witness statements dated 24th April, 2024 as his evidence in chief, he also rendered oral testimony in support of his case. He further produced exhibits 1 to 10 in pursuit of his claim. On their part, all the tenants testified in respect of their opposition to the landlords claim. Hussein Kulane Ali testified as TW1, Hassan Aliow Maalim as TW2 and Isaak Adan Aliow as TW3. The three also adopted their undated statements as their evidence in chief and their joint documents as exhibits no 1 to 6.
6.The interested party on the other hand testified through Zubier Ubwoyele Shogobe. He is the secretary general of the interested party and also a trustee, he testified as IP-1. He adopted his undated statement as his evidence in chief and the list of documents dated the 15th November, 2024 as its exhibits no 1 to 5. As indicated above, the judgement in vihiga ELC in case no E001 of 2023 was by consent admitted as the interested parties exhibit no 6. Juma Ambaka testified as IP2 in support of the case for the interested party. He further adopted his undated statement as his evidence in chief. He testified that he was the chairman of the interested party. IP3 was Abdi Odera Amundachi. He is the treasurer of the interested party.
7.On closing their respective cases, the parties filed their respective submissions. We have considered all the pleadings by the respective parties; the evidence attached and also the submissions and case laws cited and we are of the considered view that the issues for determination in this matter are the following;-[i]Whether the Landlords references dated the 2nd February, 2024 are merited, and[ii]Who should bear the costs of this suit
[i] Whether the Landlord’s references dated the 2nd February, 2024 are merited
8.In our view, the claim by the landlord herein will fall or rise on the determination of his relationship or nexus to Title no. Kakamega/Bugonda/2187. From his statement and evidence in court, the landlord claims to have taken control of the suit premises back in 1992. It is not explained by him on how he came into possession of the same despite not demonstrating any interests known to the law over the suit land on which the suit premises are constructed. He however admitted that the land belonged to the Muslim community during cross-examination in court.
9.The interested party’s witnesses on their part testified that the landlord was initially their tenant since the year 1986 but only paid rent for three months and defaulted. That he then let in strangers on the suit land and who erected the premises on which the landlord is now collecting rent from. They gave him a notice to terminate the tenancy with two others who were also occupying the premises. The latter two voluntarily vacated the premises whereas the landlord sued the interested party in Vihiga SRM’s Court in civil suit No. 125 of 2005.
10.That though the landlord had initially been issued with orders restraining the interested party from interfering with his possession of the suit premises, the same were vacated later on by the ruling delivered on the on 24th January, 2006 by hon Peter W.Macharia. The Landlord was not satisfied by that ruling and he appealed to the Kakamega high court in civil appeal no. 25 of 2006 claiming that he needed to give additional evidence to demonstrate that the title for Kakamega/Bugonda/2187 which is in the name of the interested party was a forgery. He had also claimed that the said title had reverted to the Kakamega county council and that therefore the interested party had no interest thereof.
11.However, the landlord was unable to convince the High court on his contestations and in a judgement delivered on the 10th October, 2006, Justice Thuranira Jaden in dismissing the landlord’s appeal observed that;-
12.The interested party on its part did file case No. Misc ELC No. 10 of 2023 at vihiga. The suit was against M/s Jamia Mosque Community Based Organisation. The later is a claimant to the title herein and is also closely associated with the land lord from the record. The orders that ensued from that suit were to the effect that;-It is not clear from the record how that particular matter ended. What is clear is that the tenants have been paying rent in an account run by the interested party as the later has confirmed as much. Indeed the interested party confirmed that the tenants were up to date in meeting their rental obligations.
13.The fight for the soul of plot no. Kakamega/Bugonda/2187 proceeded to the ELC Court at Vihiga in case No. E001 of 2023.Here, M/s vihiga district Muslim association a.k.a Muslim community centre where the landlord is the patron was the plaintiff. The interested party and three others were the respondents. Justice E Asati in a Judgement delivered on the 15/05/2025 decreed that;-
14.I may not wish to be seen to contradicting and/or correcting the good Judge on the above declaration but the same was obviously in error on the face of it. The registration she ordered done on the title were long effected during the registration thereof on the 5th February, 2018.For ease of reference, the said title on the registration section reads;-
15.It is therefore important to disabuse the notion that the trustees of the interested parties were registered individually as against the suit title. That cannot be a true reflection of the records maintained by the Kakamega Land Registry. Importantly though is that the learned Judge confirmed the suit premises to lie within the title which has been confirmed to be owned by the interested party.
16.The issue that then arises from the court decisions all the way since the year 2005 is whether the landlord has any interest on the suit property to enable him establish a landlord and tenant relationship with the respondents. The ELC court has decreed that the suit land belongs to the interested party and the landlord has also vehemently denied that he is a tenant of the interested party. He cannot therefore be even a head tenant to the respondents. Indeed, the tenants are currently paying rent to the interested party and according to the dictates of the law, it is the only dispute, if it arises that may be adjudicated on by this court. We therefore doubt that we have the requisite wherewithal to superitend over the matters herein as presented by the landlord in view of the various determinations by the courts.
17.The jurisdiction of this court is stated by the act which at Section 2[1] provides that;-
18.It is trite that jurisdiction is everything. It is the license that permits a court of law to make the next step in any proceedings. In this matter, we have explained that it is not possible for the “landlord” to be a landlord of the respondents in view of the registration of the interested party as the owner of the suit land and in view of the decisions of the courts as highlighted above. We also observe that there has been disputes between the landlord and the interested party for tens of years on ownership of the suit premises. According to the interested party, the landlord had only been its tenant for about three months in the year 1986 only to turn around and start claiming some rights thereof.
19.Having established that there is no landlord and tenant relationship between the parties herein, we may not need to address any other issue raised by parties. We also appreciate that there is no dispute between the interested party and the respondents which may have fallen within the jurisdiction of this court. In the locus classicus case of; Pritam v Ratilal and Another Nairobi HCCC No. 1499 of 1970 [1972] EA 560 Justice C.B Madan as he then was stated as follows:-
20.We are therefore persuaded that the tenants herein cannot be the tenants of the landlord and we proceed to strike out the three references herein. To answer the first issue identified for determination therefore is that the references dated 2nd February, 2024 are without any merit.
[ii] Who should bear the costs of this suit
21.It is trite that costs follow the event. It is also settled that the successful party should benefit from costs. The Tenants and the interested party being the successful parties deserve costs. In this we are guided by the wisdom of Section 12[1]K of the Act.
22.In the final analysis, the orders that commend to us are the following;-[a]That the References in BPRT Case Nos. E024, E025 and E027 all of the year 2024 are struck out.[b]That the tenants and the interested party are awarded costs assessed at Kshs 30,000/- Each making a total amount of Kshs 120,000/-
23.Those are the orders of the court.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF SEPTEMBER, 2025.NDEGWA WAHOME, MBS,PANEL CHAIRPERSON,BUSINESS PREMISES RENT TRIBUNAL.-AND-HON JOYCE MURIGIMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered In The Presence Of Mr. Mondia For The Landlord And Mr. Cheruiyot For The Tenants