[2017] KEHC 2936 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 69A OF 2015

CRICENTIA VERONICA ATIENO........................APPELLANT

VERSUS

SAMUEL OLOO OKOTH.................................RESPONDENT

(Being an Appeal from the Ruling ofHon A. Odawo (R.M) inKisumuCMCC No.111 of 2014 delivered on 22nd July, 2015)

JUDGMENT

Cricentia Veronica Atieno(hereinafter referred to as appellant) sued Samuel Oloo OkothSamuel Oloo Okoth(hereinafter referred to as respondent) in the lower court claiming Kshs. 126,450/- being accrued rent owed by the appellant.

Defendant/respondent filed a statement of Defence and gave notice of intention to challenge the court’s jurisdiction to determine this case. On 10. 6.15, Mr. Odeny, learned counsel for the defendant/respondent raised a preliminary objection under Section 12 of the Landlord and Tenant Act (Shops, Hotels and Catering Establishments Act), (Cap 301) of the Laws of Kenya(the Act) that the trial court had no jurisdiction on grounds that the tenancy between the appellant and the respondent was a controlled one and any dispute arising therefrom ought to be heard by the Business Premises Rent Tribunal. On 26. 6.15, Mr. K’Owino for the appellant conceded that the respondent had been appellant’s tenant but was no longer in occupation comprised in the controlled tenancy.

In her ruling delivered on 22. 7.15, the learned trial magistrate found that the court had no jurisdiction and upheld the preliminary objection.

The Appeal

The Appellant being dissatisfied with the lower court’s decision preferred this appeal and filed the Memorandum of Appeal dated 27. 7.15 which sets out 3 grounds to wit:-

1)The Learned trial Magistrate erred in law and in fact in holding that the court had no jurisdiction to determine the suit while the landlord/tenancy relationship was not subsisting as at the tiem of institution of the suit

2)The Learned trial Magistrate erred in law and in fact in making a decision which was contradicting in the light of the facts on record

3)The Learned Magistrate’sdecision is against the facts of the case and the law

SUBMISSIONS BY THE PARTIES

When the appeal came up for mention on 13. 7.17; the parties’ advocates agreed to canvass it by way of written submission which they dutifully filed.

Appellants’ submissions

It was submitted for the appellant that the provisions of Section 12 1 (e) of the Act did not apply because the respondent had already vacated the appellant’s premises.

Respondent’s submissions

It was submitted for the respondent that the suit ought to has been filed in the Business Premises Rent Tribunal.

Analysis

This being a first appeal, this court is mandated to evaluate the evidence before the trial court while bearing in mind that it never saw or heard the witnesses and therefore make due allowance for that. The principles governing the consideration and evaluation and findings of an appeal court have well been established particularly in the case of Kiruga Vs Kiruga & Another [1988] KLR page 348 where the Court of Appeal held

“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”

Circumstances under which an appellate court may interfere with a decision of the trial court were set out in the case of Mbogo – Vs – Shah & Another (1968) EA 93, where the court stated as follows:-

“I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account and consideration and in doing so arrived at a wrong conclusion.”

Determination

I have considered the appeal in the light of the pleadings on record and submissions filed on behalf of the parties.

Section 12 of the Landlord and Tenant Act (Shops, Hotels and Catering Establishments Act), (Cap 301) of the Laws of Kenya provides for the powers of the tribunal which include:-

(e)to make orders, upon such terms and conditions as it thinks fit,for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person,whether or not he is a tenant,being at any material time in occupation of the premises comprised in a controlled tenancy

It is not disputed that respondent had at the time of filing this claim not in occupation of the premises in the controlled tenancy. It is not also disputed that the dispute between the appellant and the respondent arose at a time when the respondent was in occupation of the premises comprised in a controlled tenancy. In my considered view, the material time relevant to this suit is not the time of filing the suit but the time that the dispute arose.

Orders

From the foregoing; I am satisfied that the learned trial magistrate properly considered the law and facts placed before the court and arrived at the correct decision.

In the result, the appeal is disallowed with costs to the respondent

DATED AND DELIVERED THIS 12thDAY OF October, 2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellants - N/A

Respondent - Ms Kyomazimo holding brief Mr. Odeny