Mutuku t/a Breakfast Kenya v Gavagnin (Tribunal Case E208 of 2022) [2025] KEBPRT 413 (KLR) (16 September 2025) (Judgment)
Neutral citation:
[2025] KEBPRT 413 (KLR)
Republic of Kenya
Tribunal Case E208 of 2022
N Wahome, Chair & Joyce Murigi, Member
September 16, 2025
Between
Mutie Mutuku t/a Breakfast Kenya
Tenant
and
Antonio Gavagnin
Landlord
Judgment
1.This Judgement is on the Tenants reference dated the 14th October, . The same is anchored on Section 12(4) of the landlord and tenant (Shops, Hotels and Catering Establishments) Act Cap 301 which we hereinafter refer to as “the Act”. The tenant in the reference grieved that;-
2.Accompanying the reference was the notice of motion application of the even date. The same sought for the following reliefs;-i.Spentii.That this court do order the immediate opening of the applicants business premises apartment No 2 located at Umbi complex Diani.iii.That the OCS Diani Police Station do provide security during the execution of this Order.iv.That the landlord be restrained from interfering with the smooth running of the tenant business.v.Costs of this application be provide for.
3.The tenant in support of his case further filed his witness statement dated the 8/05/2022, the list of documents dated 7/07/2025 and also testified in court on the 21/07/2025.The tenant concluded his case by rendering the submissions dated 4/08/2025.The gist of the tenant’s case is that;-a.In the year 2017, he entered into a contractual relationship with the landlord and where he was to renovate the landlord’s premises known as Kwale/Diani Beach/1609/2 at his cost.b.The tenant was to thereafter run a business at the premises awaiting a formal agreement as the landlord was a foreigner who was resident out of the country.c.He was to deduct his expenses for renovations and other expenses from the rent payable at the premises. The costs for the renovations came to about Kshs 250,000/-.d.The landlord would visit Kenya and stay at the tenant’s residence but that he always avoided any discussion on their tenancy relationship.e.That on the 30/09/2023, the landlord appeared without notice and evicted the tenant’s guests who were accommodated at the premises. That he also locked down the premises and left the country. The premises were only reopened by an order of this court.f.The tenant has been paying service charge and other expenses to government agencies for the premises to be allowed to operate.g.He was indeed a tenant of the landlord and which was confirmed by the landlord’s letter dated the 27/09/2022 where the landlord purportedly demanded for rent.h.The tenant was entitled to the reliefs sought including an amount of Kshs 4,631,198 for his expenses.
4.On his part, the landlord had opposed the tenant’s application and the reference thereof by the undated replying affidavit and the notice of preliminary objection dated the 7th November, 2022. The contention by the landlord is that;-i.There was no landlord and tenant relationship between the parties and that therefore this court lacked the wherewithal to superintend over the issues at hand.ii.The tenant had been hatching schemes to divest him of the ownership of the suit premises as he was a foreigner.iii.The tenant was using the orders of this court to harass him and pretend to be the owner of the premises.
5.The landlord did not testify in court nor render any submissions. His counsel Mr. Aminga had also sought to be allowed to cease acting for him and the request had been allowed. This court has however been able to look at the landlord’s notice of preliminary objection, the replying affidavit and his submissions in support of the preliminary objection dated 12/04/2023 and has taken due regard of the same.
6.This court also appreciates the Ruling by Hon Patricia May dated the 25/05/2025 especially her holding to the effect that;-
7.From the Ruling, it is apparent that Hon Patricia May did not rule on the Landlord’s preliminary objection on the merits as she thought it to be premature. She instead directed that the issue could only be addressed after the parties herein rendered their respective evidence.
8.Having perused the parties pleadings as above, we are of the view that the issues that arise for determination are the following;-i.Whether this court has jurisdiction to try this matterii.Whether the tenants reference dated 14th October 2022 has merit; andiii.Who should bear the costs of this suit.
(i)Whether this court has Jurisdiction to try this matter.
9.We need to render ourselves first on the question of Jurisdiction as it is indeed trite and settled that the same is everything. It is only after the same is established that a court can make any further step in the proceedings before it. This was exemplified in the locus classicus case of;-
10.The jurisdiction of this court is conferred by Section 2(1) of cap 301, the same provides that
11.In the present case, the tenant says that he entered into an agreement with the landlord in the year 2017.That he was to carryout renovations on the demised premises and which he did at a cost of Kshs 250,000. That he has also been paying service charge and other expenses to government agencies and which are required in order for one to run the business at a total cost of Kshs 4,631,198/=. The tenant did not however provide the following critical evidence to his case;-(a)The purported lease agreement in a language known to the court,(b)The duration of the purported tenancy,(c)The rent payable for the premises; andd)Any document to support the cost of renovations, payment of service charge, value added tax or at all.
12.Indeed all the documents presented to this court by the tenant as per the list of documents dated7/7/2025 are all generated by the tenant and it would be difficult to authentic the same. This is more so for the reason that the same are not signed, they therefore have no ownership. This is also exemplified and creates more doubts to his case by his own letter dated 19/09/2022 to the landlord. In the said letter to the Landlord’ the tenant was seeking for Kshs 500,000/- as the costs for the alleged renovations against the present demand of Kshs 250.000/-and a further Kshs 1,940,000/- for being a caretaker of the landlord on the demised premises at a salary of Kshs 15,000/- per month.
13.It surely cannot be that in the year 2017 the tenant entered into a tenancy agreement with the landlord and that in September,2022, he was demanding for payment of salary in arrears for caretaker services effective the year,2017. The response by the landlord is also telling. The same is contained in his letter dated 27/09/2022.In the letter, the landlord was categorical that the tenant had the intention of dispossessing him of the land where the demised premises is erected through intimidation and blackmail. He claimed for rental income of kshs 2,160,000/-at Kshs 60,000/-per month which it was alleged that the tenant had not remitted to him supposedly as his caretaker. He was also claiming a further Kshs 500,000/-for items allegedly removed from the demised premises by the tenant.
14.From the foregoing, it is our view that the tenant has not proved the establishment of a landlord and tenant relationship between himself and the landlord nor that a controlled tenancy subsists or has ever subsisted between the two. It then manifests that this court does not have the authority of the law to superintend over this matter. In this, we put reliance on the celebrated case of; Pritam & Anot -Versus- Ratilal Nairobi HCCC No. 1499 Of 1970 [1972] EA 560 Justice C.B Madan as he then was held that;-
15.We are therefore of the valued opinion that we have no jurisdiction to determine and/or resolve the issues herein. That power belongs to another jurisdiction if at all. We would therefore struck out the reference dated 14/10/2022 and the attendant application of the even date which had not been addressed in the aforesaid ruling by Hon Patricia May dated 25/05/2023.
Whether the tenant’s Reference dated 14/10/2022 has merit.
16.In view of the determination on the question of Jurisdiction, we may not need to address the merits or lack of it of the reference herein. Indeed, we have already struck out the same and it has in reality lost its breath. To belabour the same would therefore be an exercise in futility and without Justification. The Applicant and the Respondent are advised to invoke the commercial or civil jurisdictions of our courts if they so wish. It would be the right forum to decide whether the applicant could recover the costs of his alleged renovations of the premises and salary as a caretaker of the premises. Such court would also determine whether the respondent was entitled to rental income or mesne profits for the premises and damages for alleged lost goods from the applicant.
(iii)Who should bear the costs of this suit.
17.In this, we do abide by the conventional wisdom of sections 12(1)k of Cap 301 and 27 of the civil procedure act and award costs to the successful party who is the Respondent.
18.In light of the analysis above, we proceed and make the following Orders;(i)That the Reference and Notice of Motion Application both dated 14th October, 2022 are struck out.(ii)That the Respondent is awarded costs assessed at Kshs 100,000/-Those are the orders of the Court.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF SEPTEMBER,2025NDEGWA WAHOME,MBS - PANEL CHAIRPERSON,BUSINESS PREMISES RENT TRIBUNALANDHON JOYCE MURIGI, - MEMBER,BUSINESS PREMISES RENT TRIBUNAL.Judgement delivered in the presence of Mr. Mutie Mutuku, the Tenantand in the absence of the Landlord