[2022] KEBPRT 663 (KLR)

Coast Raha Limited v Maka (Tribunal Case E349 of 2022) [2022] KEBPRT 663 (KLR) (Civ) (11 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 663 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E349 of 2022

Gakuhi Chege, Vice Chair

August 11, 2022

Between

Coast Raha Limited

Applicant

and

Esha Maka

Respondent

Ruling

1. Before me is a preliminary objection dated May 5, 2022 in which the respondent states as follows:-(i)The honourable Tribunal does not have jurisdiction to determine the case herein on the ground that there is no tenancy relationship between the parties herein.(ii)The existence of the relationship of the landlord and tenant is a pre-requisite to the application of cap 301, Laws of Kenya.(iii)Where such relationship does not exist the provisions of the Act will not apply.(iv)It is trite law that where proper parties are not before the honourable tribunal, the tribunal lacks jurisdiction to hear the suit.(v)The application and reference is misadvised and incompetent and ought to be struck out.(vi)The reference and the application before the tribunal is wanton abuse of court process and must be dismissed in limine with costs to the landlady/respondent.

2. The applicant herein instituted a reference dated April 22, 2022 complaining that the landlord had terminated contract without any notice and was interfering with its peaceful occupation of the business premises. It therefore seeks for injunction, recovery of general damages and costs of the suit.

3. The applicant filed an application of even date supported by affidavit of Joseph Kalonzo in which it is deposed that the tenant entered into a contract to lease the business premises known as Omar Ali building on January 1, 2018 for an undefined period and have been paying rent and fulfilling all the terms of the contract.

4. The applicant has been running a booking office for its transport business in the suit premises. The applicant alleges that the respondent closed the suit premises on an unspecified date without any notice.

5. Interim orders were issued on April 25, 2022 in favour of the applicant. The respondent filed a replying affidavit admitting to being the owner of the premises known as Omar Ali building in Mpeketoni, Lamu County and that the same are leased to one Cheka on the basis of an oral agreement.

6. The respondent denies existence of any landlord/tenant relationship between her and the applicant and deposes that there was no evidence of payment of rent. The documents attached to the supporting are not sufficient proof of landlord/tenant relationship under section 2 of cap 301, Laws of Kenya.

7. I am now required to determine whether to uphold or dismiss the preliminary objection.

8. It is instructive to note that although counsel for the applicant made several applications to file a supplementary affidavit in this matter, none was filed and as matters stand, the denial by the respondent that there is no landlord/tenant relationship between the parties herein has not been controverted.

9. Section 107(1) of the Evidence Act, cap 80, Laws of Kenya provides as follows:-“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

10. I have looked at the documents annexed to the supporting affidavit and note that none of them proves existence of a landlord/tenant relationship between the parties. There is no single rent payment receipt despite the applicant’s deposition that it has been paying rent to the landlord.

11. In the case ofPritam vs Ratilal & Another(1972) EA 560 it was held as follows:-“As stated in the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act itself, it is 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. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. 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” (underlining mine).

12. The existence of landlord/tenant relationship is a legal as well as a factual point. It is capable of disposing of the instant reference if found to be lacking in line with the foregoing decision since it goes into the question of jurisdiction of the tribunal.

13. In this case, the applicant has not supplied evidence of existence of a landlord/tenant relationship between it and the respondent. As such, the tribunal’s jurisdiction to adjudicate over the dispute herein is lacking.

14. In the premises, the preliminary objection is upheld and the entire proceedings herein are struck out with costs to the respondent.

15. The respondent’s costs are assessed at Kshs 20,000/- against the applicant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 11TH DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Sore for the Tenant/ApplicantNo appearance for the Landlord