[2015] KEELC 731 (KLR)
The court found that the Plaintiff's garage business on the suit premises constitutes a 'shop' within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. There was no evidence of a written tenancy agreement between the Plaintiff and Defendant for the garage business, leading to...
Source-derived case information.
- Citation
- [2015] KEELC 731 (KLR)
- Parties
- Plaintiff: A-One Auto Services Limited; Defendant: Jayantilal O. Kantaria
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 578 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Jurisdiction and Transfer
- Outcome
- Matter transferred to the Business Premises Rent Tribunal for hearing and determination.
- Judges
- MM Gitumbi
- Legal Topics
- Controlled Tenancy, Business Premises Rent Tribunal, Landlord and Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A-One Auto Services Limited
Plaintiff
Jayantilal O. Kantaria
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Jurisdiction and Transfer
Legal Issues
- 1 Whether the dispute falls within the jurisdiction of the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.
- 2 Whether the tenancy in question is a controlled tenancy as defined by the Act.
- 3 Whether the matter should be transferred to the Business Premises Rent Tribunal for hearing and determination.
Ratio Decidendi
The court found that the Plaintiff's garage business on the suit premises constitutes a 'shop' within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. There was no evidence of a written tenancy agreement between the Plaintiff and Defendant for the garage business, leading to the conclusion that the tenancy is a controlled tenancy as defined by the Act. Since disputes arising from controlled tenancies fall within the jurisdiction of the Business Premises Rent Tribunal, and given that the Plaintiff had already filed a reference before the Tribunal, the court held that it lacked jurisdiction to hear the matter and ordered its transfer to the Tribunal...
Court Disposition
Matter transferred to the Business Premises Rent Tribunal for hearing and determination.
Orders
- This matter is transferred to the Business Premises Rent Tribunal for hearing and determination.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT AND LAND COURT
ELC. CASE NO. 578 OF 2014
A-ONE AUTO SERVICES LIMITED………………PLAINTIFF/ APPLICANT
VERSUS
JAYANTILAL O. KANTARIA………....……DEFENDANT/RESPONDENT
RULING
I have been requested by Counsels for the parties to deliver a ruling as to whether or not this matter should be transferred to the Business Premises Rent Tribunal.
I have perused the file and the pleadings filed therein. It is evident that there is a garage business being carried out within the compound of the suit premises being L.R No. 209/7/3 situate at 3rd Parklands Avenue, Nairobi. This business is being carried out by the Plaintiff. On the other hand, the proprietor of the said business, Minesh Jagdish Rathod, also occupies Flat No. 2 within the suit premises. The dispute herein relates to the garage business being carried out within the compound of the suit premises by the Plaintiff. It is alleged that the Defendant has served notice to vacate to the Plaintiff which the Plaintiff is disputing.
The said garage business falls within the definition a “shop” within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 which gives the following definition at section 2(1):
“shop” means premises occupied wholly or mainly for purposes of a retail or wholesale trade or business for the purpose of rendering services for money or money’s worth.”
There is no question that the Plaintiff’s business on the suit premises comprises of a business for the purpose of rendering services for money or money’s worth.
In addition to the above, there is no evidence that the Plaintiff entered into a tenancy agreement with the Defendant to carry out a garage business within the compound of the suit premises. This leads to my finding that what exists is a controlled tenancy. Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act defines a controlled tenancy as follows:
“controlled tenancy” means a tenancy of a shop, hotel or catering establishment (a) which has not been reduced in writing …”
Disputes arising from controlled tenancies are to be referred to the Business Premises Rent Tribunal under the provisions of section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.
I note that the Plaintiff had already filed a reference to the BPRT under BPRT No. 257 of 2014 and only came to this court because the Chairman of that Tribunal had not commenced any sittings. I am informed that the said Chairman is now sitting. I therefore direct that this matter be transferred to the Business Premises Tribunal for hearing and determination.
DELIVERED AND DATED AT NAIROBI THIS 20TH
DAY OF FEBRUARY 2015.
MARY M. GITUMBI
JUDGE