[2021] KEBPRT 72 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E298 OF 2021 (NAIROBI)

CRYSTALIZED TECH SOLUTIONS..........................APPLICANT/TENANT

VERSUS

NGONG BUTCHERS CO-OPERATIVE......1ST RESPONDENT/LANDLORD

ASSET FLOW LIMITED........................................2ND RESPONDENT/AGENT

RULING

1. Before me is a preliminary objection by the 1st Respondent dated 10th August 2021 which raises two grounds:

(i) The hounorable Tribunal has no jurisdiction to hear and determine this matter as there is no existing tenancy between the purported tenant/Applicant and the landlord/1st Respondent. There is no existing landlord tenant relationship between the two parties.

(ii) The subject premises are leased out to another tenant.

2. The preliminary objection was ordered to proceed by way of written submissions. However, only the 1st Respondent filed the same.

3. According to the 1st Respondent, the documents annexed to the supporting affidavit of the Applicant in the application dated 6th July 2021 show that the tenant in respect of the suit premises is one Stephen Makau Mwangi. As such the Applicant is accused of being an imposter or trespasser in the premises there being no landlord/tenant relationship with the 1st Respondent.

4. In the court of Appeal decision in the case of the Owners and Masters of the Motor Tugs Barbara” and’ Steve B” (2007) eKLR at page 7/15 it was held that 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. Citing Nyarangi J in the Owners of the Motor Vessel Lilian S “-vs- Caltex Oil (Kenya) Ltd (1989) KLR 1, it was held as follows:-

“………I think 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 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 down (sic) tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction……..”.

5. I have looked at the rent payment receipts annexed to the supporting affidavit of the Applicant sworn on 6th July 2021 and the same are in the names of Stephen Makau Mwangi.

6. According to the Respondents, by the time the instant proceedings were instituted, the premises were in occupancy of one Lawrence Mwangi which fact has not been disputed or controverted through further affidavit by the Applicant.

7. In absence of a landlord/tenant relationship, I entirely agree with the Respondents that the Tribunal lacks the requisite jurisdiction under section 2 of the landlord and tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya.

8. In the case of the Re Hebtulla properties ltd (1979) eKLR, the superior court while considering the Tribunal’s jurisdiction to reinstate a dispossessed tenant had the following to say at page 9/11:-

“ The “recovery of possession” must here mean and means, recovery of possession by and not from the landlord. The legislature deemed it necessary to empower the Tribunal to order recovery of possession by the landlord. If the reverse had been intended, it would have been expressly provided since the intention of the Act is to protect tenants. In my opinion, it is therefore clear that Parliament never intended that the Tribunal should have power to order recovery of possession by a tenant where such possession has been seized by a landlord and it never gave that power to the tribunal. That power cannot be implied. In the premises, forcible taking of possession “is not a matter within the area of jurisdiction of the tribunal and that being the case, the Tribunal cannot investigate any complaint about forcible possession of premises by a landlord such matter being for the courts. I find that the complaint was outside the area of jurisdiction of the tribunal. Jurisdiction was wanting” (emphasis added).

9. In the application dated 6th July 2021, the Applicant is seeking inter-alia for an order of reopening and reinstatement into the premises forthwith and unconditionally. This is what the superior court clearly stated the Tribunal has no jurisdiction and is thus a nullity.

10. In the premises the order given on 12th August 2021 was made without jurisdiction to adjudicate or grant.

11. The upshot of my foregoing analysis is that the preliminary objection succeeds. I therefore proceed to make the following final orders:-

(a) The preliminary objection dated 10th August 2021 is hereby upheld.

(b) The Applicants reference dated 6th July 2021 is hereby dismissed together with the applications dated 6th July 2021 and 30th July 2021 with costs.

(c) The landlord’s application dated 18th July 2021 is hereby allowed in terms of prayer 3 thereof.

(d) The landlord’s costs are assessed at Kshs.30,000/- against the Applicant.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF DECEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Nganga for the Landlord

No appearance for the Tenant