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Mbugua v Gichuru (Tribunal Case E746 of 2025) [2025] KEBPRT 414 (KLR) (26 September 2025) (Ruling)

Mbugua v Gichuru (Tribunal Case E746 of 2025) [2025] KEBPRT 414 (KLR) (26 September 2025) (Ruling)
Citation
Mbugua v Gichuru [2025] KEBPRT 414 (KLR)
Media Neutral Citation
[2025] KEBPRT 414 (KLR)
Court
Business Premises Rent Tribunal
Outcome
Dismissed
Case number
Tribunal Case E746 of 2025
Judges
Gakuhi Chege, J Osodo
Judgment date
26 September 2025
Language
English
Type
Judgment
Original source file
Download DOCX (35.0 KB)
Collections
Date published
30 September 2025
Case action
Ruling
Filing county
Nairobi
Order
i. The notice of termination dated 31st March 2025 was not validly served and was declared void. ii. The Applicant by accepting rent after 1st June 2025 waived her right to rely on the notice. iii. The Respondent’s substantial improvements justified protection against undue hardship. iv. The plea of res judicata was rejected. v. The application for a mandatory injunction failed for want of special circumstances. vi. The Notice of Motion dated 3rd June 2025 was dismissed with costs of Kshs 15,000/= to the Respondent which should be offset against the rent account. vii. The Applicant was at liberty to pursue termination afresh in strict compliance with section 4 of Cap 301 and proper proof of service.
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A. Background
1.This ruling arises from the Notice of Motion dated 3rd June 2025 by the Applicant/Landlord, Hannah Mukami Mbugua, seeking vacant possession of the premises known as 'Victory Shop' on Title No. Thimbigua/Kiambaa/4157 together with police assistance to enforce compliance.
2.The application is supported by the affidavit of the Applicant sworn on 3rd June 2025. Annexed thereto are copies of the alleged notice to terminate tenancy dated 31st March 2025, the affidavit of service sworn by one Peter Njoroge, process server, dated 2nd April 2025,and photographs of the shop frontage. The Applicant contends that the Respondent was duly served but failed to vacate, thereby necessitating the present application.
3.The Respondent, John Gichuru, opposed the application through a Replying Affidavit sworn on 16th July 2025. He annexed Mpesa statements showing payment of rent for June and July 2025, which he avers were accepted by the Applicant, thereby waiving the termination notice. He further annexed photographs of renovations carried out on the premises and receipts evidencing expenditure of over Kshs 450,000/= in improvements.
4.The Respondent asserts that the notice was never served upon him personally and that he became aware of the same only upon receipt of these proceedings.
5.In further opposition, the Respondent filed written submissions dated 29th August 2025 in which he relied on various judicial authorities on service of notices, waiver by acceptance of rent, res judicata, and the standards for grant of a mandatory injunction.
6.The Applicant, in rejoinder, filed supplementary submissions dated 10th September 2025 contending that service by affixation was proper and that the Respondent’s claim of improvements cannot override the clear statutory right of a landlord to recover possession upon termination of tenancy.
7.-
B. Issues for Determination
8.From the pleadings and submissions on record, the following issues arise for determination:a.Whether the termination notice dated 31st March 2025 was validly served.b.Whether the tenancy stood terminated as of 1st June 2025.c.What is the effect of acceptance of rent after the alleged termination date?d.What is the significance of improvements undertaken by the Respondent.?e.Whether the proceedings in BPRT/E493/2025 operate as res judicata.f.Whether the Applicant has met the threshold for grant of a mandatory injunction.g.Who should bear the costs of the application?
C. Analysis and Determination
9.On service of the notice, the Applicant relies on an affidavit of service alleging affixation on the shop door. The Respondent denies service.
10.The Court of Appeal in Shadrack Arap Baiywo v Bodi Bach [1987] eKLR held:“The law is that strict proof of service is required especially where the consequences of failure to prove service may result in judgment being entered against a party in his absence.”
11.Similarly, in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court observed:“Where service of a document is disputed, it must be strictly proved to the satisfaction of the court.”
12.Applying these authorities, the Tribunal finds that service by affixation, unsupported by photographs or evidence of attempts at personal service, falls short of strict proof.
13.On the validity of the termination notice, section 4(2) of Cap 301 requires notices to be in the prescribed form, to state statutory grounds, and to give not less than two months’ notice.
14.The Court of Appeal in Munaver N. Alibhai v South Coast Fitness & Sports Centre Ltd [1995] KECA 166 held:“A notice which does not comply with the prescribed statutory form or fails to disclose the specific grounds under the Act is null and void and incapable of terminating a controlled tenancy.”
15.Guided by this authority, the Tribunal finds the notices of 31st March and 17th April 2025 to be defective and void.
16.On the issue of acceptance of rent, the Respondent exhibited Mpesa receipts showing payment and acceptance of rent for July 2025.
17.In Gusii Mwalimu & 2 Others v Mwalimu Hotel Kisii Ltd [1995-1998] 2 EA 100, the Court of Appeal held:“Where a landlord, after giving notice to terminate a tenancy, continues to accept rent, he waives the notice and the tenancy continues.”
18.Applying this authority, the Tribunal finds that by accepting rent, the Applicant waived reliance on the impugned notice.
19.On the Respondent’s improvements, he annexed receipts evidencing expenditure of over Kshs 450,000/= in renovations.
20.The High Court in Shell & BP (Malindi) Kenya Ltd v Kings Motors Ltd [1978] eKLR held:“A landlord who knowingly allows a tenant to expend money on permanent improvements without objection cannot thereafter be heard to say that such improvements were unauthorized.”
21.Evicting the Respondent in these circumstances would occasion undue hardship.
22.On res judicata, the Applicant contends that the issues herein were previously litigated in BPRT/E493/2025. The record shows that the earlier matter was withdrawn without a final determination.
23.The Court of Appeal in Uhuru Highway Development Ltd v Central Bank of Kenya [1999] eKLR stated:“For the doctrine of res judicata to apply, there must have been a former suit between the same parties in which the matter was directly and substantially in issue and that issue was heard and finally determined by a court of competent jurisdiction.”
24.Applying this authority, the Tribunal holds that res judicata does not apply.
25.On the prayer for a mandatory injunction, the Court of Appeal in Kenya Breweries Ltd v Washington Okeyo [2002] 1 EA 109 held:“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and only in clear cases where the court thinks that the matter ought to be decided at once.”
26.Given the disputed facts on service, waiver, and improvements, this case does not present a clear and special circumstance for the grant of a mandatory injunction.
27.On the principles of injunctions generally, the Respondent relied on Giella v Cassman Brown [1973] EA 358, as restated in Nguruman Ltd v Jan Bonde Nielsen [2014] eKLR, where the Court held:“The three conditions for grant of interlocutory injunctions are sequential and must all be satisfied: establishment of a prima facie case, demonstration of irreparable injury and, if in doubt, determination on a balance of convenience.”
28.Applying these conditions, the Applicant has not satisfied any, and the balance of convenience favours the Respondent who remains in possession and is carrying on business.
29.On costs, section 12(1)(k) of Cap 301 grants the Tribunal discretion. The High Court in Republic v Rosemary Wairimu Munene ex parte Ihururu Dairy Farmers Co-operative Society Ltd [2014] eKLR observed:“Costs follow the event. The successful party should ordinarily be compensated for the trouble taken in prosecuting or defending the matter.”
30.The Respondent having succeeded, he is entitled to costs.
D. Final Orders
31.In light of the foregoing analysis, the Tribunal makes the following orders:a.The notice of termination dated 31st March 2025 was not validly served and is declared void.b.The Applicant by accepting rent after 1st June 2025 waived her right to rely on the notice.c.The Respondent’s substantial improvements justify protection against undue hardship.d.The plea of res judicata is rejected.e.The application for a mandatory injunction fails for want of special circumstances.f.The Notice of Motion dated 3rd June 2025 is dismissed with costs of Kshs 15,000/= to the Respondent which shall be offset against the rent account.g.The Applicant is at liberty to pursue termination afresh in strict compliance with section 4 of Cap 301 and proper proof of service.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF SEPTEMBER 2025.HON. GAKUHI CHEGE - PANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO - PANEL MEMBERIn the Presence of:Landlord present in personNo appearance by tenant
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