Muthoni v Kariuki & another (Tribunal Case E165 of 2025) [2025] KEBPRT 417 (KLR) (26 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 417 (KLR)
Republic of Kenya
Tribunal Case E165 of 2025
J Osodo, Chair & Gakuhi Chege, Member
September 26, 2025
Between
Teresia Muthoni
Applicant
and
Felix Kariuki
1st Respondent
David Muriuki
2nd Respondent
Ruling
A. Background
1.The Applicant/Tenant filed a Notice of Motion dated 18th July 2025 seeking to set aside the ruling delivered on 4th July 2025 which struck out her Reference and Application dated 12th February 2025, declared her to be no longer a tenant, and awarded costs of KES. 20,000/= to the landlord against her.
2.The application is supported by the applicant’s affidavit of even datein which she avers that she is in subsisting tenancy relationship with the 1st Respondent at a monthly rent of KES. 9,000/= with no arrears, annexing M-Pesa statements and photographs of her continued business operation. She contends that the Respondents misled the Tribunal by alleging a new tenant, one Duncan Musumba, had taken over the premises. She also argues that she was not served with the Respondents’ application dated 19th February 2025, and that her filed submissions and documents were not placed in the court record by the Tribunal staff.
3.The 1st Respondent, Felix Kariuki, filed a Replying Affidavit dated 7th August 2025 insisting that the Applicant was lawfully evicted and that the premises were let to a new tenant, one Duncan Musumba, who paid a deposit and signed a tenancy agreement. He adds that the Applicant later forcefully and unlawfully re-entered the premises using police officers and displaced the new tenant.
4.The ruling of 4th July 2025 was delivered on the strength of the documents then placed before the Tribunal. Among these documents was a notice of termination of tenancy which, in the absence of any rebuttal documents by the Applicant, was found by the Tribunal to be valid and lawful. It was on that basis that the Tribunal concluded that the Applicant was no longer a tenant and struck out her reference and application. The Applicant now contends that this finding was made without her bundle of documents and submissions already filed and paid for, being placed on record, thereby resulting in an erroneous outcome.
5.Both parties thereafter filed written submissions reiterating their positions, the Applicant seeking reinstatement and the Respondents urging that the earlier finding be maintained. We shall consider both submissions together with all documents filed as we deal with the issues for determination.
B. Issues For Determination And Analysis
6.The following issues arise for determination:a.Whether the Tenant/Applicant is entitled to the prayers sought in the application dated 18th July 2025.b.Who shall bear the costs of the application?
Issue (a) Whether the Tenant/Applicant is entitled to the prayers sought in the application dated 18th July 2025
7.The Applicant seeks to set aside the ruling delivered on 4th July 2025 and to have her application and reference reinstated for hearing on the merits.
8.From the material placed before this Tribunal, it is not in dispute that the Respondent in his own Replying Affidavit and submissions admitted that the Applicant “forcefully and unlawfully re-entered the premises and displaced the new tenant.” This admission confirms that as at the time of filing the present application, the Applicant was physically in possession of the premises.
9.Possession is a central element in determining whether a landlord-tenant relationship subsists. The earlier ruling of 4th July 2025 was based on the finding that the Applicant was no longer a tenant. That position is now contradicted by the Respondent’s own admission and by the Applicant’s annexures showing rent payment of KES. 8,000 made to the 1st respondent on 25th March 2025 and her continued business operation.
10.It is therefore clear that the ruling of 4th July 2025 was made without full consideration of all the material facts. In the interest of justice and in keeping with the principle in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, where courts are enjoined to avoid injustice caused by procedural mishaps, this Tribunal finds that the Applicant is entitled to the orders sought in her application.
11.Consequently, the ruling delivered on 4th July 2025 is hereby set aside, and the matter shall proceed to hearing of the main application on its merits.
Issue (c ) Who shall bear the costs of the application?
12.Given the circumstances and the need to allow the main dispute to be determined substantively, this Tribunal directs that costs of the application shall be in the cause.
C. Orders
13.Accordingly, the Tribunal makes the following orders:a.The Tenant/Applicant’s Notice of Motion dated 18th July 2025 is allowed.b.The ruling delivered on 4th July 2025 is hereby set aside.c.The matter shall proceed to hearing of the main application on its merits and parties shall comply with order 11 of the Civil Procedure Rules within 21 days hereof.d.Costs shall be in the cause.It 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:Musamali for the tenant/applicantKariuki h/b for Monda for Landlord