[2021] KEBPRT 429 (KLR)
The Tribunal found that the lease in question was for a period of five years and three months and did not contain a termination clause. According to section 2 of Cap. 301, such a lease does not constitute a controlled tenancy. The Tribunal, therefore, lacked jurisdiction to entertain the matter. The application and...
Source-derived case information.
- Citation
- [2021] KEBPRT 429 (KLR)
- Parties
- Applicant: Charles Owuor Rapul Tebo t/a Tebotech Training Institute Ltd.; Respondent: Swafaa Homes; Respondent: Work-No-Words Auctioneers; Respondent: Zain Taha
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 313 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection/jurisdiction
- Outcome
- application dismissed and reference struck out for want of jurisdiction
- Legal Topics
- Controlled Tenancy, Jurisdiction of Tribunal, Lease Agreements, Striking Out Reference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Owuor Rapul Tebo t/a Tebotech Training Institute Ltd.
Applicant
Swafaa Homes
Respondent
Work-No-Words Auctioneers
Respondent
Zain Taha
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection/jurisdiction
Legal Issues
- 1 Whether the Business Premises Rent Tribunal has jurisdiction over a tenancy exceeding five years three months without a termination clause.
- 2 Whether the applicant is entitled to deposit rent in court pending appointment of an administrator for the deceased landlord's estate.
- 3 Whether restraining orders against the respondents are warranted.
Ratio Decidendi
The Tribunal found that the lease in question was for a period of five years and three months and did not contain a termination clause. According to section 2 of Cap. 301, such a lease does not constitute a controlled tenancy. The Tribunal, therefore, lacked jurisdiction to entertain the matter. The application and reference were dismissed and struck out with costs to the respondents, as the Tribunal could not proceed further without jurisdiction.
Court Disposition
application dismissed and reference struck out for want of jurisdiction
Orders
- The application dated 29th March 2021 is dismissed.
- The Reference is struck out in its entirety.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 313 OF 2019 (MOMBASA)
CHARLES OWUOR RAPUL TEBO
T/A TEBOTECH TRAINING INSTITUTE LTD.………………..TENANT/APPLICANT
VERSUS
SWAFAA HOMES…………………….………......................AGENT/1ST RESPONDENT
WORK-NO-WORDS AUCTIONEERS…………...AUCTIONEER/2ND RESPONDENT
ZAIN TAHA……………………………………….......……………….3RD RESPONDENT
RULING
1. Through an application dated 29th March 2021, the Tenant is seeking in material part for an order allowing him to be depositing his monthly rents from March 2021 in the Tribunal to avoid accumulation pending appointment of an administrator for the estate of SHARIFF TAHA (DECEASED)/ LANDLORD who died in October 2020.
2. He further seeks for restraining orders against the Respondents from interfering with his quiet and peaceful occupation of the suit premises pending hearing and determination of the case.
3. The application is supported by the Applicant’s affidavit sworn on 29th March 2021 and the grounds on the face of the application.
4. The Tenant runs an institute of learning under the name of TEBOTECK TRAINING INSTITUTE in the suit premises pursuant to a lease entered with the deceased Landlord. The lease is marked CORT-1.
5. The said lease shows that the term thereof is for a period of 5 years 3 months.
6. Although the Respondents in their written submissions filed in court on 5th May 2021 alludes to a replying affidavit in paragraph 4 as having been filed, the court record has no such record.
7. Be that as it may, what has caught my attention is the term of the lease which is stipulated to be 5 years 3 months.
8. Under section 2 of Cap. 301, Laws of Kenya, a controlled tenancy means a tenancy of a shop, hotel or catering establishment which is for a period not exceeding five years or contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof.
9. I have examined the lease document and the same does not contain any termination clause and is for a period of more than 5 years.
10. The preamble to Cap. 301 defines the Act 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 therewith and incidental thereto”.
11. In the case of OWNERS AND MASTERS OF THE MOTOR VESSEL “JOCY” –VS- OWNERS AND MASTERS OF THE MOTOR TUGS “BARBARA” and STEVE “B” (2008) E.A 367 the court of Appeal expressed itself as follows:-
“The question of jurisdiction 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. 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 and without it, a court has no power to make one more step, where court has no jurisdiction there would be no basis for continuation of proceedings pending other evidence. A court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited”.
12. Having observed as above, I entertain no doubts that this court has no jurisdiction to deal with the matter filed by the Tenant herein.
13. In the premises, I proceed to dismiss the application and to strike out the Reference in its entirely with costs to the Respondents.
14. The said costs are assessed at Kshs.10,000/- against the Tenant.
15. The orders earlier issued are also vacated for avoidance of doubt.
It is so ordered.
DATED, SIGNED & DELIVERING THIS……18TH …..DAY OF………JUNE…………………2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Mr. Oyas for the Obonyo for Applicants
No appearance for the Respondent