[2024] KEBPRT 1516 (KLR)
The Tribunal found that the lease agreement between the parties had expired and the Tenant had vacated the premises, with the Landlord having taken possession. The Tenant's own affidavits confirmed these facts. As a result, there was no longer a landlord and tenant relationship between the parties. The Tribunal held...
Source-derived case information.
- Citation
- [2024] KEBPRT 1516 (KLR)
- Parties
- Applicant: Caris Foundation International-Kenya; Respondent: Dora Mueni Mutuvi
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E160 of 2024
- Procedural Posture
- Tribunal Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; matter dismissed for want of jurisdiction
- Judges
- CN Mugambi
- Legal Topics
- Jurisdiction of Tribunal, Controlled Tenancy, Lease Expiry, Landlord Tenant Relationship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caris Foundation International-Kenya
Applicant
Dora Mueni Mutuvi
Respondent
Procedural Posture
Tribunal Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Tribunal has jurisdiction to entertain the application after the expiry of the lease agreement.
- 2 Whether a landlord and tenant relationship exists between the parties at the time of the application.
- 3 Whether the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act apply in the absence of a subsisting tenancy.
Ratio Decidendi
The Tribunal found that the lease agreement between the parties had expired and the Tenant had vacated the premises, with the Landlord having taken possession. The Tenant's own affidavits confirmed these facts. As a result, there was no longer a landlord and tenant relationship between the parties. The Tribunal held that its jurisdiction is dependent on the existence of such a relationship as defined under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. Without a subsisting controlled tenancy, the Tribunal cannot exercise jurisdiction. The preliminary objection was therefore upheld, and the matter dismissed for want of jurisdiction, with costs to the Tenant.
Court Disposition
preliminary objection upheld; matter dismissed for want of jurisdiction
Orders
- The preliminary objection by the Landlord is upheld.
- The matter is dismissed for want of jurisdiction.
Full Case Text
Judgment text and source record
23 paragraphs
Caris Foundation International-Kenya v Mutuvi (Tribunal Case E160 of 2024) [2024] KEBPRT 1516 (KLR) (11 October 2024) (Ruling)
Neutral citation: [2024] KEBPRT 1516 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E160 of 2024
CN Mugambi, Chair
October 11, 2024
Between
Caris Foundation International-Kenya
Tenant
and
Dora Mueni Mutuvi
Landlord
Ruling
1. The Landlord/Respondent’s notice of preliminary objection is brought on the following grounds;-a.That the Tribunal lacks jurisdiction to entertain the Application herein as per Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act as read together with Section 11 and 12 of the Act as well as the decision in Republic vs Chairperson Business Premises Rent Tribunal at Nairobi & Another ex parte Suraj Housing & Properties Ltd & 2 Others [2016] eKLR.b.That the Tribunal lacks jurisdiction to entertain the Application herein as the lease agreement subject of the Application herein lapsed on 31. 4.2024 and hence there is no subsisting Landlord and Tenant relationship between the Applicant and the Respondents in respect to Mbuyuni House erected on land portion numbers 1906, 1907 and 1908 Malindi.
2. The Complaint filed by the Tenant against the Landlord is brought on the grounds;a.That the Landlord has refused, rejected and/or neglected to accept the official handover of the suit premises.b.That the Landlord has refused, rejected and/or neglected to prepare an inventory of the suit property.c.That the Landlord has failed to furnish proper accounts of deposit paid and deductions if any.
3. I have also read prayer (3) of the Tenant’s notice of motion dated 1. 7.2024 wherein the Tenant seeks the following orders;-“That the Landlord/Respondent be compelled to accept the Tenant/Applicant’s did officially hand over the premises back to them and the Landlord/Respondent’s conduct of re-occupying, making structural adjustments and staying thereon amounts to implied acceptance…”
4. At paragraph 4 of the Applicant’s supporting affidavit, the Tenant/Applicant has deponed as follows;-“That the said lease agreement lapsed and the tenant informed the Landlord that they would not renew the said lease and their intention to exit the suit premises.”
5. At paragraph 9 of the supporting affidavit, the Tenant depones as follows;-“That the Landlord has also proceeded to re-occupy and/or moved into the suit premises and embarked on structural adjustments and repairs without formal handover from the Tenant.”
6. It is clear from the above narration that the lease agreement between the parties has already expired and it is further clear that the Tenant has vacated the premises and the Landlord has taken possession thereof. The Tenant itself admits as much. In this circumstance, I am satisfied that there DOES NOT exist the relationship of a Landlord and Tenant between the parties and the Tribunal consequently NO LONGER has any jurisdiction in this matter.In the case of; Pritam vs Ratilal & Another, [1972], EA 560, the court held as follows;-“Therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a Tribunal, otherwise the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined in Section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction.”
7. In the circumstances, there is no basis upon which the Tribunal can continue with these proceedings. I therefore uphold the preliminary objection by the Landlord and this matter is hereby dismissed for want of jurisdiction. The Tenant will bear the costs of the suit.
8. This file is closed.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11THDAY OF OCTOBER, 2024. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Kioko for the Landlord and Mr. Kiponda for the Tenant