A landlord in Kiambu, who had moved to the Business Premises Rent Tribunal seeking to evict her tenant, faced an unexpected outcome when the tribunal delivered its ruling.
The case was dismissed after a series of procedural missteps, resulting in the tenant, who was absent during the ruling, being declared the successful party and awarded legal costs.
The dispute arose after the landlord issued a notice of termination of tenancy dated March 31, 2025, directing her tenant to vacate by June 2025.
When he did not leave, she moved to the Tribunal through an application filed on June 3, 2025, seeking vacant possession, an order for police assistance to enforce compliance, and a mandatory injunction to restrain him from interfering with her property rights.
At first glance, it looked like a straightforward claim by a landlord exercising her statutory rights under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301.
However, as the proceedings unfolded, several weaknesses in her case emerged.
In her supporting documents, the landlord insisted that the tenant had been duly served with the termination notice, which was affixed to the business premises by a process server.
She maintained that his continued stay amounted to trespass and urged the Tribunal to enforce her rights.
“The Applicant (landlord) contends that the Respondent (tenant) was duly served but failed to vacate, thereby necessitating the present application,” the judgment states.
She also dismissed his reliance on alleged improvements, arguing that such renovations could not override a landlord’s statutory powers once tenancy had been lawfully terminated.
The tenant opposed the application through a sworn reply affidavit.
He argued that he had never been personally served with any notice and only learned of its existence once the tribunal proceedings began.
He went further and annexed Mpesa statements showing payment of rent for June and July 2025, which had been accepted by the landlord.
In his view, acceptance of rent after the termination date meant that the landlord had waived the notice.
“The respondent further annexed photographs of renovations carried out on the premises and receipts evidencing expenditure of over Sh450,000 in improvements,” the judgment stated.
He argued that it would be unfair to throw him out after making such heavy investments.
On top of this, he raised the issue of res judicata.
Res judicata refers to a principle that prevents the same parties from re-litigating a dispute that has already been decided by a competent court in a final judgment.
In this case, the tenant pointed out that a similar application had previously been filed but withdrawn, suggesting the landlord was improperly re-litigating the matter.
In his written submissions, the tenant cited several judicial precedents, which established that a landlord who continues to receive rent after issuing a termination notice effectively nullifies the notice.
He further relied on authorities in which courts protected tenants from eviction after they had made substantial improvements to the premises.
The Tribunal carefully examined the issues and drew on multiple authorities in reaching its conclusions.
On the question of service, it emphasised the rule that service must be strictly proved, especially where eviction may result.
It found that service by merely affixing the notice to the door, without photographic evidence or proof of attempts at personal service, was insufficient.
On the validity of the notice itself, the Tribunal pointed to the legal requirement that notices under Cap 301 must be in the prescribed statutory form and disclose specific grounds for termination.
Citing the Court of Appeal's previous ruling, it held that the notice issued was defective and void.
The Tribunal also agreed with the tenant that acceptance of rent after June 2025 amounted to a waiver of the notice.
It stressed that a landlord cannot both terminate a tenancy and continue to receive rent, as the latter action affirms continuation of the relationship.
On the issue of improvements, the Tribunal noted the receipts totaling over Sh450,000 and held that it would be inequitable to allow eviction after such substantial investments.
“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 unauthorised,” read the judgment.
The plea of res judicata was rejected, as the earlier matter had been withdrawn before any final determination.
The Tribunal reiterated that for res judicata to apply, a dispute must have been conclusively determined in a previous case.
On the request for a mandatory injunction, the Tribunal noted that such orders are only granted in clear and special circumstances, and found that this case did not meet that threshold.
Given the conflicting accounts of service, waiver, and renovations, it found this was not such a case.
Finally, on costs, the Tribunal exercised its discretion under Cap 301 and ruled that costs should follow the event.
Since the tenant had succeeded, it awarded him Sh15,000 in costs to be offset against rent arrears.
Notably, when the Tribunal delivered its ruling virtually on September 26, 2025, the tenant was not present.
The landlord’s application was dismissed, the termination
notice declared void, and the tenant shielded from eviction on grounds of
waiver and improvements.
