[2021] KEBPRT 350 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 18 OF 2021 (ELDORET)

ALICE ATIENO T/A

MAMBOLEO TORCH....................................................TENANT/APPLICANT

VERSUS

AIC CHRISTIAN BOOK CENTRE LIMITED..........................RESPONDENT

THE BOARD OF TRUSTEES AFRICAN

INLAND CHURCH OF KENYA..................................................RESPONDENT

RULING

1. By a motion dated 3rd May 2021, the Applicant moved this Tribunal seeking that the 1st and 2nd Respondents’ directors or authorized officers be cited for contempt of court and be committed to civil jail for a term of six (6) months and/or be ordered to purge the contempt of court in terms this honourable court will deem just.

2. In response to the application, the Respondents filed a replying affidavit sworn by Reverend David Kibet ROP and a preliminary objection dated 28th May 2021.

3. The preliminary objection dated 28th May 2021 has no power to punish for contempt and that the Tenant having vacated the premises, the Tribunal lacks jurisdiction to hear and determine the matter.

4. In the case of the Owners and Masters of the Motor Tugs “Barbara” and “Steve” (2007 eKLR it was held at page 7/15 that

“the question of jurisdiction raised in the circumstances such as those existing in the present appeal, is a threshold issue and must be determined by a Judge at the threshold stage, using such evidence as may be placed before him by the parties Nyarangi J.A graphically put it thus:-

“…………….i think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized…….of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there could be no basis for a continuation of proceedings pending other evidence. A court of Law down (sic) tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction……”.

5. In the case of Samuel Kamau Macharia & Another- vs-. Kenya Commercial Bank Limited & 2 others (2012) eKLR, the Supreme Court of Kenya had the following to say at paragraph 68 on the question of jurisdiction:-

“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law……the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings”.

6. This Tribunal’s jurisdiction is clearly defined under section 12 of Cap. 301, Laws of Kenya and section 12 (2) thereof states as follows:-

“A Tribunal shall not have or exercise any jurisdiction in any criminal matter or entertain any criminal proceedings for any offence whether under this Act or otherwise”.

7. It is trite Law that contempt of court is a quasi criminal offence and this Tribunal being barred by dint of section 12 (2) of Cap. 301, Laws of Kenya cannot entertain such proceedings.

8. In any event, Section 5 of the Judicature Act, Cap. 8 Laws of Kenya confers jurisdiction to punish for contempt of court upon the High Court and the Court of Appeal even where enforcement of orders of subordinate costs created under Article 169 of the Constitution of Kenya, 2010 is in issue.

9. I have looked at the decisions relied upon by counsel for the Applicant and they constitute good law. However, none of them confers jurisdiction upon this Tribunal to punish for contempt or to entertain contempt of court proceedings. The facts and issues before the superior courts in the said cases are clearly distinguishable from those in the present case.

10. The upshot of my foregoing analysis is that the preliminary objection taken by the Respondent has merit and is hereby upheld with the resultant effect being the dismissal of the application dated 3rd May 2021.

11. The Respondents costs against the Applicant are assessed at Kshs.15,000/-.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 19TH DAY OF AUGUST 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TIRBUNAL

In the present of:

Chemoiyai for Tenant/Applicant

No appearance for the Landlord/Respondents