[2021] KEBPRT 372 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 61 OF 2020 (MOMBASA)

ANN NJOKI KIURA.................................................TENANT/RESPONDENT

VERSUS

WARUNGU HOLDINGS LIMITED.......................LANDLORD/APPLICANT

RULING

The Landlord’s/Applicant’s notice of motion dated 22nd January 2021 seeks the following orders;

1. Spent.

2. That the honourable tribunal be pleased to set aside its orders issued on 17th February 2020.

3. That the honourable Tribunal be pleased to strike out the pleadings filed by the Tenant/Respondent and order that the Tribunal lacks jurisdiction to hear and determine the suit filed before it by the Tenant/Respondent.

4. Costs.

The grounds and the affidavit upon which the application is brought may be summarized as follows;

1. That the tenancy herein is based on a lease for 5 years and 6 months executed by the parties on1st September 2018.

2. That the Tenant is in rent arrears in the sum of Kshs 200,000/-.

3. That there is material non-disclosure by the Tenant of the existing lease.

4. That the tenancy relationship between the Landlord and the Tenant herein is not a controlled tenancy.

5. That the orders issued on 17th February 2020 are ultra vires, null and void and ought to be set aside.

6. That the Tenant is neither in occupation, nor paying rent.

7. That by use of the orders of the Tribunal, the Tenant has evaded paying rent, taken away all the belongings and has vacated the premises without any notice to the Landlord.

The application is opposed. The Tenant/Respondent has filed grounds of opposition and a replying affidavit whose contents may be summarized as follows;

1. That the application is bad in law, an afterthought an abuse of the court process.

2. That the Landlord is in contempt of the court orders issued on 17th February 2020 for terminating the tenancy.

3. That the application is overtaken by events as the tenancy was unprocedurally and unlawfully terminated.

4. That the application has been brought after an undue delay.

5. That the tenancy is a controlled tenancy and this Tribunal has jurisdiction to hear and determine this dispute.

6. That the affidavit in support of the motion bears a signature which appears to be forged and the commissioner for oaths has not appended his signature against his stamp.

7. That the lease the Landlord seeks to rely on has not been annexed to his affidavit as evidence.

8. That if the lease exists (which is denied) the same was never registered.

The parties filed submissions in support of their respective positions and I proceed to summarize the said submissions as follows;

The Applicant/Landlord’s Submissions

1. That the relationship between the Tenant and the Landlord herein was governed by a 5 years 6 months term lease duly registered at the Mombasa Land Registry.

2. A court or Tribunal cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law or legislation.

3. The jurisdiction of a court or Tribunal is not a technicality but that which goes to the root or heart of the matter.

4. Without jurisdiction, the court cannot entertain any proceedings.

5. The Tenant has since vacated the premises and moved out all her belongings.

The Tenant’s/Respondent’s Submissions are to the effect that;

1. The tenancy herein is a controlled tenancy.

2. The Landlord has failed to produce a valid lease.

3. The evidential burden is cast upon the Landlord/Applicant to prove the existence of facts relied upon in his application.

4. The purported lease, if any was never registered and is invalid as a valid lease for a term exceeding one year can only be made by a registered instrument under section 47 of the Registered Lands Act.

The issues that arise for determination in view of the above summary, in my view are the following;

1. Is the tenancy between the parties herein a controlled tenancy?

2. Is the Tenant in occupation and possession of the premises and if not, what is the effect of the lack of possession and occupation on the part of the Tenant?

3. Is the Landlord/Applicant entitled to the orders sought in his application under consideration?

On Issue No. 1

The Landlord’s contention is that the tenancy relationship between the parties herein is governed by a lease agreement in writing for a period of 5 years and 6 months. That this lease period places the tenancy herein outside the jurisdiction of the Tribunal as it exceeds the five years period/term provided for under section 2(a) (1) of Cap 301of the Laws of Kenya.

On her part, the Tenant/Respondent seems to contend that since the Landlord has not produced any lease in evidence, that the tenancy is not in writing and therefore a controlled one.

There is annexed to the supporting affidavit of the Landlord/Applicant, a lease agreement between the Landlord and the Tenant herein. Though the same is attached to the said affidavit, it has not been referred to as an exhibit therein but the same having been brought to the attention of the Tribunal, I will not ignore it. At page 3 of the lease agreement, the lease term is expressed to be five years six months, renewable by the Landlord’s consent in writing (page 4). The document on its face bears the stamp of the District Land Registry Mombasa.

I have also noted that there is an affidavit sworn by the Tenant/Respondent on 14th February 2020in support of her application of the same date. At paragraph 3 of the said affidavit, the Tenant confirms that she has been a Tenant of the Applicant herein from the period commencing 1st September 2018. This date coincides with the date of the lease document I have referred to above.

At paragraph 11 of the same affidavit, the Tenant annexed a draft copy of the debt repayment/commitment agreement (ANK – 2). The said draft agreement at clause 1 provided;

“Ann Njoki Kiura is a registered as lesee for a term of five years and six months from 1st September 2018 of all that property known as Mombasa/Block XX/280 – Shop No 3 Ground Floor situated in Mombasa District together with the improvements thereof.”

This clause in the draft agreement confirms the contents of the lease agreement attached to the Landlord’s affidavit referred to earlier.

I have also noted the text message annexed to the supporting affidavit of the Tenant (ANK – 4) which required the Tenant to sign a new agreement before she could start work. The ordinary interpretation of this would be that there was an earlier agreement and which in my view is the lease agreement the Landlord refers to in his affidavit.

From a reading of the Tenant’s grounds of opposition and the replying affidavit, the Tenant is not/does not appear to be firm on the lack of a written lease between herself and the Landlord.

At paragraph 5 of her replying affidavit, the Tenant/Respondent states;

“That even assuming but not admitting that there exists some document as alleged, I know for certain that the same was never registered.”

The Tenant cannot, under oath admit and deny the existence of the lease agreement at the same time. The fact that he admits that “he knows for certain” that the agreement was never registered leads to the inference that indeed the lease agreement exists but is only faulted for non-registration.

All the above points to the fact that indeed there exists a written lease between the parties herein. The same is for the period of five years and six months. I have perused the same and I have not seen any termination clause otherwise than for breach of covenant within five years of its commencement. I do therefore find that the tenancy between the parties herein is Not a controlled tenancy within the provisions of section 2 of Cap 301 of the Laws of Kenya.

On Issue No. 2:

On 19th January 2021, when this matter came up for hearing before Hon Lorot Ag Chairman, Mr Baraza for the Tenant informed the court;

“Even when the orders were set aside in further contempt, the Landlord failed to return the items. They terminated the tenancy. There is another Tenant.” The contemptuous acts of the Landlord have rendered our application nugatory. The Landlord has put us in that position. We have looked at Cap 301 at section 12(1) of the Act. The Act provides that the Tribunal has powers to award compensation for any loss incurred by a Tenant on termination of a controlled tenancy in respect of goodwill for improvements carried out with the Landlord’s consent. We are asking the Tribunal to make this award.”

Further at ground No. 3 of the grounds of opposition, the Tenant states;

“That the application herein is overtaken by events as the tenancy forming the subject matter of these proceedings was unlawfully and unprocedurally terminated. The Landlord at paragraph 7 of his supporting affidavit has also stated that the Tenant has since vacated the premises. It is therefore common ground that the Tenant is no longer in the premises. She cannot be a Tenant to the Landlord having so vacated. I therefore do find that there does not exist any Tenant – Landlord relationship between the parties herein.

On issue No 3

From the above, I do find that the Tribunal has no jurisdiction to hear and determine the dispute herein. I hereby set aside the orders issued on 17th February 2020 and strike out the pleadings filed by the Tenant herein. The Tenant’s reference to the Tribunal is hereby dismissed with costs to the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling dated and delivered virtually by Hon Cyprian Mugambi Nguthari this 23rdday of July, 2021in the presence of Miss Barazafor theTenantand in the absence of theLandlord.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL