Njeri v Itimu (Tribunal Case E655 of 2025) [2025] KEBPRT 416 (KLR) (26 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 416 (KLR)
Republic of Kenya
Tribunal Case E655 of 2025
J Osodo, Chair & Gakuhi Chege, Member
September 26, 2025
Between
Sarah Njeri
Applicant
and
Johnson Itimu
Respondent
Ruling
A. Background
1.This dispute was commenced by a Reference filed by the Applicant/Landlord, under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301. In her Reference, she alleged that the Tenant, had defaulted in rent payment amounting to KES. 33,900, caused disturbance to other tenants within the premises, and prayed for orders of vacant possession, levy of distress, and costs.
2.The Applicant, contemporaneously filed an application seeking urgent reliefs. On 30th July 2025, this Tribunal, in the absence of the Tenant, allowed the Landlord’s application and granted orders for vacant possession of the premises and distress for rent arrears.
3.The Tenant, upon learning of the said orders, promptly filed his own application dated 30th July 2025 supported by his affidavit. In the said application, he sought stay, suspension and/or setting aside of the Tribunal’s orders of 30th July 2025, maintenance of the status quo, and costs.
4.The tenant filed a supporting affidavit of even date in which he deposes that he has been a tenant in the suit premises for over nine (9) years and that he has never paid rent to the applicant but has consistently paid rent to Elijah Muhoho Kamau, her husband.
5.The tenant annexes Mpesa statements (JI-1) showing rent payments made to Elijah up to August 2025. He further states that his absence on 30th July 2025 was occasioned by unavoidable network breakdown and was not deliberate.
6.He maintains that the Applicant is not his landlady and that her claim is a misuse of the Tribunal’s process.
7.The Applicant, Sarah Njeri, thereafter filed a second application dated 6th August 2025 supported by her affidavit. She seeks dismissal of the Tenant’s application, enforcement of the orders of 30th July 2025, joinder of Elijah Muhoho Kamau as co-landlord, and costs.
8.She filed a supporting affidavit of even date in which she deposes that she is the lawful owner of the premises jointly with her husband Elijah based on their marriage evidenced by a marriage certificate annexed thereto.
9.The applicant avers that the Respondent is a tenant who has failed to pay rent, thereby accumulating arrears of KES. 33,900. Furthermore, she terms the Tenant’s denial of a relationship with her as deceitful and intended to evade lawful orders.
10.The Tribunal directed that both the Tenant’s application dated 30th July 2025 and the Landlords’ application dated 6th August 2025 be canvassed together by way of written submissions. Both parties filed their respective submissions which we shall consider together with all other pleadings as we deal with the issues for determination.
B. Issues for Determination and Analysis
11.The following issues arise for determination;a.Whether there exists a landlord–tenant relationship between the Applicant/landlord and the Respondent/tenant.b.Whether the Tenant’s application dated 30th July 2025 is merited.c.Whether the Landlords’ application dated 6th August 2025 is merited.d.Whether the Reference dated 11th June 2025 filed by Sarah Njeri under Section 12(4) of Cap 301 is sustainable in the circumstances.e.Who shall bear the costs?
Issue (a) Whether there exists a landlord–tenant relationship between the applicant/landlord and the tenant/respondent
12.This Tribunal’s jurisdiction under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 is pegged on the existence of a valid landlord–tenant relationship. Unless such a relationship exists, the Tribunal has no mandate to adjudicate disputes between parties.
13.Section 2 of Cap 301 defines the parties thus:
14.From the evidence, the applicant has not shown proof of ever receiving rent from the Respondent/tenant. Conversely, the Respondent has exhibited Mpesa statements (JI-1) showing payments made to Elijah Muhoho Kamau up to August 2025.
15.Therefore, the tribunal finds that there is no landlord–tenant relationship between the applicant herein and the Respondent/tenant under the definition stated above in Section 2 of Cap 301 Laws of Kenya.
16.A valid landlord–tenant relationship exists between Elijah Muhoho Kamau and the Respondent.
Issue (b) Whether the Tenant’s application dated 30th July 2025 is merited
17.The Tenant has satisfactorily explained his absence on 30th July 2025 as having been occasioned by network failure. He filed the present application promptly. His rent payment evidence up to August 2025 rebuts the claim of arrears.
18.Accordingly, his application is merited, and the ex-parte orders issued on 30th July 2025 must be set aside. The tribunal shall therefore order that the tenant’s application dated 30th July 2025 be allowed with no orders as to costs.
Issue (c): Whether the Landlords’ application dated 6th August 2025 is merited.
19.The Applicant seeks to enforce the earlier ex-parte orders and to enjoin Elijah as a party. However, she has not proved her status as landlady in law. The application is therefore unmerited.
20.Further, no termination notice in compliance with Section 4 of Cap 301 has been served or exhibited. In Eben Hardware Hepbjay Ltd v Mugo & Another (BPRT Case E063 of 2023), the Tribunal held that termination cannot occur absent a valid statutory notice.
21.We find that the application dated 6th August 2025 is thus unmerited and shall be dismissed with costs to the tenant.
Issue (d) Whether the Reference filed by Sarah Njeri dated 11th June 2025 is sustainable
22.This matter was commenced by Sarah Njeri’s Reference alleging arrears of KES. 33,900, disturbance, and seeking vacant possession. However, this Tribunal has already found that no landlord–tenant relationship exists between the applicant and the Respondent/tenant.
23.Jurisdiction under Cap 301 arises only where such a relationship exists. Without it, the Reference is fatally defective.
24.The proper course is therefore to strike out the Reference.
Issue (e) Who shall bear the costs.
25.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 to the respondent/tenant.
C. Orders
26.In conclusion the following final orders commend to us;a.The Tenant’s application dated 30th July 2025 is hereby allowed.b.The ex parte orders issued on 30th July 2025 are hereby set aside.c.The Landlords’ application dated 6th August 2025 is hereby dismissed.d.The Reference and application dated 11th June 2025 are hereby struck out for want of a landlord–tenant relationship.e.The tenant shall continue to pay rent as he has always done previously when the same falls due.f.Costs of KES.10,000 to the tenant/respondent to be paid by the applicant (Sarah Njeri).g.File is ordered closedIt is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF SEPTEMBER 2025.HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE - (MEMBER)In the presence of:Tenant present-in-personLandlord present-in-person