[2022] KEHC 14035 (KLR)

Christoffersen v Kavneet Kaur Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) [2022] KEHC 14035 (KLR) (Commercial and Tax) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14035 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Appeal E036 of 2022

DAS Majanja, J

October 18, 2022

Between

Lisa Kristine Christoffersen

Appellant

and

Kavneet Kaur Sehmi t/a The Random Shop

Respondent

(Being an appeal from the Judgment and Decree of Hon. B. J. Ofisi, RM/Adjudicator delivered on 25th February 2022 in SCC COMM E1207 of 2021 at the Small Claims Court, Milimani)

Judgment

1. In the judgement dated February 25, 2022, the Small Claims Court dismissed the appellant’s claim seeking judgment of Kshs 100,000. 00 against the respondent on account of outstanding rent. The appellant now appeals against the judgement in accordance with the memorandum of appeal dated March 24, 2022.

2. Before I deal with the grounds of appeal, I think a brief background of the matter is necessary. In its statement of claim dated December 6, 2021, the appellant claimed Kshs 1,000,000. 00 on the basis that in 2020, the respondent rented the appellant’s house in Tchui Lane, Muthaiga for Kshs 150,000. 00 per month. She rented the house for a period of six (6) months which she failed to pay rent of Kshs 900,000. 00. That by a whatsapp message on May 31, 2021, she admitted owing Kshs 1,000,000. 00 and promised to pay. In her response to the claim, the respondent denied she owed the amount claimed and urged the court to dismiss the claim.

3. At the hearing, both parties testified and filed written submissions. In the judgment, the adjudicator stated that the appellant had failed to prove that there was a contract for rental services between her and the respondent as the correspondence did not prove the case.

4. I have considered the record and the issue before the adjudicator concerning the payment of rent. In her statement adopted as evidence in chief, the appellant stated as follows:i.In the year 2020, the respondent asked me if she could rent part of my house (Tchui Lane, Karura Gardens, Muthaiga) that I was living in for a consideration of paying Kshs 150,000/- per month.ii.I accepted the respondent’s offer resulting into a verbal contract for rental services.

5. From the aforesaid statement and the judgment, it is apparent that the appellant’s claim is for rent which calls into question the jurisdiction of the Small Claims Court to determine the matter. The issue was not raised by the parties or noticed by the court. Jurisdiction is a fundamental issue and without it, the court cannot proceed to deal with the matter. In the well-known case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal explained that:"Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction …. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given."

6. Jurisdiction is so fundamental that it can be raised at any time including on appeal as was held by the Court of Appeal in Kenya Ports Authority v Modern Holding [EA] LimitedMSA CA Civil Appeal No 108 of 2016 [2017] eKLR as follows:"We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the court itself provided that where the court raises it suo motu parties are to be accorded the opportunity to be heard." [emphasis mine]Based on the aforesaid decision I called upon counsel for the parties to address the court on whether the Small Claims Court and this court have jurisdiction to entertain a claim for rent.

7. Counsel for the appellant was of the view that there was no landlord and tenant relationship once the relationship came to an end leaving the appellant to collect the rent arrears as a debt due. She cited the case of Charles Kakai Mayungu Channan v David Mukwanja BGM HCCA No 21 of 2017 [2019] eKLR among other cases where the court held that where there is no subsisting tenancy relationship, the rent arrears may be collected as a debt. On the other hand, counsel for the respondent insisted that from the pleadings, the court had to determine whether there was a tenancy relationship and in the circumstances the issue was one whether the court had to adjudicate on the nature of the relationship before determining the issue of rent or rent arrears.

8. The Small Claims Court is a subordinate court of limited jurisdiction. Section 12(1) of the Small Claims Court, 2016 (‘’the SCCA’’) provides for the nature and pecuniary jurisdiction of the court as follows:12. Nature of claims and pecuniary jurisdiction(1)Subject to this Act, the rules and any other law, the court has jurisdiction to determine any civil claim relating to –(a)a contract for sale and supply of goods or services;(b)a contract to money held and received;(c)liability in tort in respect of loss or damage cause to any property or for the delivery or recovery of moveable property;(d)compensation for personal injuries; and(e)set-off and counterclaim under any contract.

9. A claim before the Small Claims Court must fit into any of the five categories of cases enumerated in section 12(1) of the SCCA. The question in this case is whether a claim for rent arrears falls within the jurisdiction of the SCCA. Counsel for the appellant argued that rent is a form of service, that is rent service and that it falls under section 12(1)(a) thus within the court’s jurisdiction. Although the appellant framed its claim as one for rental services, it is in substance a claim for rent arrear as is evidenced from her own statements. Black’s Law Dictionary (10th Ed) defines rent as, “consideration paid .. periodically, for the use or occupancy of property.”

10. The basic rule of statutory interpretation is that the words of a statute must be given their plain and ordinary meaning (see Republic v El Mann [1969] EA 357, Republic v Kenya School of Law and another exp Kithinji andanother NRB HC JR Misc No 120 of 2018 [2019] eKLR). In my view, the rent has a specific and known meaning which does not extend to a contract for services. To extend the meaning of rent to the rubric of a contract for sale of goods and services would amount to expanding the court’s jurisdiction by craft or innovation, a practice the Supreme Court frowned upon in Samuel Kamau Macharia v Kenya Commercial Bank and others SCK Application No 2 of 2011 [2012] eKLR where it observed that:"A court’s jurisdiction flows from either the Constitution or Legislation or both. Thus a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law ….. the court must operate within the constitutional limits. It cannot expand jurisdiction craft or innovation."

11. As regards the other categories in section 12(1)(b), (c) and (d) of the SCCA, it is clear that a claim for rent does not fall within the sphere of “money held and received’’ as the landlord in a claim for rent arrears does not hold any money that is due to a tenant. Nor does a claim for rent give rise to tortious liability or a claim for compensation for injuries. I therefore find and hold that a claim for rent or rent arrears is outside the jurisdiction of the Small Claims Court and ought not to have been entertained.

12. Having reached the aforesaid conclusion, I do not propose to deal with the issue raised by the respondent that this court does not have appellate jurisdiction in light of the appellant’s claim for rent and rent arrears which, in the circumstances, ought to be dealt with by the Environment and Land Court in accordance with article 162(2)(b) of the Constitutionas read with section 13 of the Environment and Land Court Act, 2011. As this is an appeal from the decision of the Small Claims Court, section 38 of the SCCA provides for appeals to the High Court and this court has jurisdiction to determine the appeal including the question whether the subordinate court has jurisdiction.

13. Having reached the conclusion that the Small Claims Court lacked jurisdiction to entertain a claim for rent and rent arrears, I am constrained to allow the appeal only to the extent that the order of the subordinate court is substituted with an order that the claim be and is hereby struck out. However, since the court raised the issue of jurisdiction on its own motion, each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF OCTOBER 2022. D. S. MAJANJAJUDGECourt Assistant: Mr M. Onyango.Ms Njuguna instructed by Bali Sharma and Bali Sharma Advocates for the Appellant.Mr Gomba instructed by Charles Gomba and Company Advocates for the Respondent.