[2021] KEBPRT 424 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 1241 OF 2019 (NAIROBI)

ANTONY MAGERIA T/A

KAHUTHU & COMPANY ADVOCATES...........................TENANT/APPLICANT

AND

PRESTIGE MANAGEMENT VALUERS LTD...............RESPONDENT/AGENT

RULING

PARTIES AND THEIR REPRESENTATIVE

1. The Tenant/ Applicant, Antony Mageria, rented space on LR. No 209/4384 Rooms 305 and 306 RUPRANI HOUSE for the business (herein after referred to as the ‘Tenant’)

2. Learned Counsel Agnes W. Njoroge & Co. Advocates represents the Tenant in this reference. info @awnadvocates.co.ke

3. The Respondent Prestige Management Valuers Ltd is the agent of the landlord New Bibirioni Investment Ltd which is the landlord of the suit premises on LR. No 209/4384 Rooms 305 and 306 RUPRANI HOUSE rented out to the tenant (herein after referred to as the ‘Landlord’).

4. Learned Counsel Wanyoike & Macharia Advocates represents the Respondents. wanyoikemacharia@wmadvocates.com

THE DISPUTE BACKGROUND

5. On or about 9th May 2017 a lease agreement was reduced into writing between the Landlord and Tenant wherein the landlord had agreed to lease out the premises being Rooms 305 and 306 Ruprani House LR. No 209/4384 from the 9th May 2017 for a term of five (5) three months (3 months).

6. On 4th December 2019 the tenant moved this tribunal by way of a reference dated 4th December 2019 and a Notice of Motion under certificate filed on 4th December 2019 under Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, seeking amongst other orders quite enjoyment of the suit premises arising from illegal threats of distress without due notice by the landlord/agents pending hearing and determination of the application and reference. Further the tenant sought that the Tribunal gives an injunction restraining the Respondent from auctioning the applicant’s goods pending hearing and determination of the Tenant’s application and reference. In addition, the Tenant sought protection from the Tribunal from the coercive and arbitrarily increase in rent by the Landlord without leave of the tribunal.

7. The Landlord issued several demands notices on diverse dates more particularly being 13th November 2019 and 28th November 2019 each being 2 day Notices.

8. This Tribunal granted orders to restrain the respondent/ agent from distressing for rent, interfering with quit occupation and lawful enjoyment of the suit premise by the tenant on 4th December 2019 and or proclaiming the applicant’s goods and the same is in force to date.

JURISDICTION

9. The Jurisdiction of this tribunal is in dispute.

THE TENANTS CLAIM

10. The tenant filed a reference dated 4th December 2019 together with a Notice of Motion application under certificate of urgency and supporting affidavit dated 4th December 2019 these pleadings form the basis of this claim. The tenant obtained restraining orders as against the landlord on 4th December 2019 and to date the landlord is still restrained from interfering with quite possession of the suit premises by the tenant either by closing or evicting the tenant.

THE LANDLORDS CLAIM

11. The respondent/agent on the other hand have filed a Preliminary objection and annexed a replying affidavit on 12th December 2019 sworn by the director of the respondent.

12. Parties filed written submission and on 9th June 2019 the matter was fixed for ruling on 9th July 2021. The submission having not been uploaded on time this ruling.

13. I have had occasion to peruse the pleadings above-mentioned of both the respondent/agent and tenant and also the agent’s and Tenants written submissions and I will not rehearse the same again as they are brief and to the point.

14. I will refer to them in my analysis below where relevant and I thank parties for the same.

MATTERS NOT IN DISPUTE

15. There is no dispute that there was an existing Lease Agreement reduced into writing from 1st April 2017 at the time of proclamation of the Tenant’s goods.

LIST OF ISSUE FOR DETERMINATION

16. The respondents raised certain issues for determination in their submissions and the applicants in their affidavits, therefore, the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below:

a) Whether the Tribunal has jurisdiction under section 12 oftheLandlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to investigate the complaint raised by the tenant?

b) If the tribunal finds it has jurisdiction whether the action of the landlord was legal?

ANALYSIS AND FINDINGS

Whether the Tribunal has jurisdiction under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to investigate the complaint raised by the tenant warranting striking out of the reference?

17. The Tribunal’s jurisdiction is circumscribed under Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act a controlled tenancy is defined as a tenancy of a shop, hotel or catering establishment which has been reduced into writing and which is for a period not exceeding five years. In the present case, the respondent contends that there exist a valid lease Agreement presented before the Tribunal by both parties dated 9th May, 2017.

18. The respondent also contends that the tribunal lacks jurisdiction as in the said Agreement it has been stipulated that:

The term is “five (5) years three (3) months with effect from the first day of April two thousand and seventeen”

I have carefully perused annexure AM2 being tenancy agreement dated 9th March 2017 and annexure AM1 of 22nd December 2011 both between Tenant and the Landlord to whom the Respondent acts as an agent, in particular, AM2 which governs the present relationship.

19. From the foregoing it is evident that the tenancy was not intended to be a controlled tenancy.

20. The question of jurisdiction is a threshold issue and must be determined at the threshold stage.

21. The Supreme Court in its Advisory Opinion, In the Matter of Advisory Opinion of the Supreme Court, Constitutional Application No. 2 of 2011, restated the principle in the “Motor Vessel “LILLIAN S case”, in the following terms –

“The “Lillian S” case [1989] KLR, establishes that jurisdiction flows from law and the recipient court is to apply the same with any limitation embodied therein. Such a court may not arrogate to itself jurisdiction through craft of interpretation or by way of endeavor to discern or interpret the intention of Parliament where the wording of legislation is clear and there is no ambiguity”.

22. The preamble to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, reads as follows: -

“An Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected there with and incidental thereto.”

23. The tribunal’s construction of the title of this Act together with the content of the preamble (supra) is that, this Act deals specifically with the landlord and tenant relationships in relation to structures standing on the land. The mandate to resolve disputes arising from dealings in relation to such structures is exclusively vested in the Business Premises and Rent Tribunal in terms of section 12 of the Act.

24. In assessing the Jurisdiction of the Business Premises and Rent Tribunal, it must be noted that in the case of Owners of Motor Vessel Lillian S -vs- Caltex Kenya 1989 eKLR;

“Jurisdiction is everything. Without it, the Court has no power to make one more step. A Court lays down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”

25. I therefore find that this tribunal is not clothed with jurisdiction to deal with this dispute and hence must down its tools.

26. In the circumstances I need not get into the other issues raised.

ORDERS

For the reasons given above I ORDER as follows:

a) The Tenant’s Application dated 4th December 2019 is hereby dismissed.

b) The reference by the Tenant dated 4th December 2019is effectively compromised and stands dismissed.

c) The Landlord will have costs assessed at Ksh. 20,000.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING dated, signed and delivered virtually by Hon A. Muma this 13th July 2021 in the presence of Miss Njoroge for the Tenant, Ngangafor the Agent/Respondent.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL