[2022] KEBPRT 816 (KLR)
The tribunal found that no landlord-tenant relationship existed between the parties; instead, their arrangement was a business partnership with profit sharing. Attempts to convert the partnership into a tenancy failed as no agreement was reached on rent, and the purported payment of rent was made under a court...
Source-derived case information.
- Citation
- [2022] KEBPRT 816 (KLR)
- Parties
- Applicant: Esther Wairimu Chege; Respondent: Zhang Yonguo
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E228 of 2022
- Procedural Posture
- Tribunal Reference / Ruling
- Outcome
- reference and application dismissed for want of jurisdiction
- Judges
- A Muma
- Legal Topics
- Landlord Tenant Relationship, Business Partnerships, Jurisdiction of Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wairimu Chege
Applicant
Zhang Yonguo
Respondent
Procedural Posture
Tribunal Reference / Ruling
Legal Issues
- 1 Whether a landlord-tenant relationship existed between the parties for the purposes of the tribunal's jurisdiction.
- 2 Whether the tribunal had jurisdiction to entertain the reference and application by the applicant.
- 3 Whether the applicant was entitled to reliefs sought regarding rent increase, deposit, and eviction notice.
Ratio Decidendi
The tribunal found that no landlord-tenant relationship existed between the parties; instead, their arrangement was a business partnership with profit sharing. Attempts to convert the partnership into a tenancy failed as no agreement was reached on rent, and the purported payment of rent was made under a court order, not through mutual agreement. Since the respondent never willingly accepted rent, the relationship remained a partnership, not a tenancy. Consequently, the tribunal lacked jurisdiction to hear the matter, and both the reference and application were dismissed. The tribunal further declined to award costs or order a refund, finding that any loss suffered by the applicant was...
Court Disposition
reference and application dismissed for want of jurisdiction
Orders
- The reference and application by the applicant are dismissed.
- No order as to costs or refund; sums paid to be used by the landlord to offset suit and site visit costs.
Full Case Text
Judgment text and source record
20 paragraphs
Chege v Yonguo (Tribunal Case E228 of 2022) [2022] KEBPRT 816 (KLR) (Civ) (10 November 2022) (Ruling)
Neutral citation: [2022] KEBPRT 816 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Civil
Tribunal Case E228 of 2022
Andrew Muma, Vice Chair
November 10, 2022
Between
Esther Wairimu Chege
Applicant
and
Zhang Yonguo
Respondent
Ruling
Background 1. Esther Wairimu Chege moved this tribunal against her presumed landlord Zhang Yongguo by a reference dated March 9, 2022 claiming increase of rent from Kshs 30,000 to Kshs 60,000 and demanding unfair rent deposit based on intended increase and a verbal notice of eviction. She filed an application dated March 9, 2022 and obtained temporary reliefs pending inter-parties hearing on March 11, 2022.
2. The Application and Reference is opposed and a Replying Affidavit has been filed together with a rent validation report by Rendant Co Ltd dated April 12, 2022 estimating the rent at Kshs 80,000 per month.
Analysis 3. Upon the filing of a Contempt application on July 14, 2022 and considering the court had sent an inspector on May 13, 2022 the tribunal in its wisdom decided to visit the premises on September 9, 2022 in Naivasha and made observations as stated in the proceedings herein. The tribunal also heard all parties including a representative of head landlord and the headman all in support of the landlord’s contention. These were treated as witnesses of the landlord in this cause.
Determination 4. Pursuant to the foregoing, this tribunal concludes the case as follows:i.There was no landlord tenant relationship what existed was a business partnership to share profits at 30% which contention is not opposed. In fact, profit was shared in January 2022 at Kshs 54,000. ii.The attempts to convert the said partnership did not materialize as the Landlord made an offer of Kshs 50,000 which was not accepted and a counter offer was made at Kshs 30,000 which was rejected.iii.The tenant then moved the tribunal claiming they are protected tenants and was ordered to pay rent at Kshs 30,000 per month. An order obtained through material non-disclosure- quickly did the same by MPESA which was confirmed at the site visit.iv.A contract must be complete. It must contain an offer, acceptance and consideration. It appears the consideration herein was obtained via a court order thus leading to an illusionary landlord-tenant relationship created by a forced acceptance of rent upon the landlord.v.The landlord at no one time accepted rent willingly from the tenant and as such their relationship remains that of a business partnership.vi.Having said so, I find this tribunal lacks jurisdiction to entertain this matter and proceeds to dismiss both the reference and the application by the Tenant.vii.Because of the circumstances of the exit of the tenant from the premises, this tribunal will not order for costs directly neither will it order a refund since the loss suffered by the tenant was due to her own brinkmanship and less than candid behavior. Landlord to use the sums to offset costs of the suit and site visit costs.
HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 10TH DAY OF NOVEMBER 2022 IN THE PRESENCE OF WAIREGI FOR THE TENANT AND IN THE ABSENCE OF THE LANDLORD.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL