[2022] KEBPRT 99 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 294 OF 2020

ELEVEN ENTERTAINMENT LIMITED........................................TENANT/APPLICANT

VERSUS

KEWAL SINGH FLORA.........................................................LANDLORD/RESPONDENT

EPHRAIM MURIGO..........................................................................INTERESTED PARTY

RULING

A. Parties and Representatives

1. The applicant Eleven Entertainment Limited is the Tenant and rented space for the business in the suit property (hereinafter known as the ‘Tenant’)

2. The firm of Lestins & Smith Advocates represent the Applicant/Tenant in this matter. info@lestinsandsmith.co.ke

3. The Respondent Kewal Singh Flora is the Landlord and rented out space to the Tenant for the business in the suit property (hereinafter known as the ‘Landlord’)

4. The firm of Ndichu Associates & Co. Advocates represent the Respondent/Tenant in this matter. ndichuadv@gmail.com

B. The Dispute Background;

5. The Landlord filed a reference and notice of motion application dated 11th March 2020 and acquired orders ex-parte from the Tribunal to break into the premises and order the Tenant to pay all the outstanding arrears.

6. The Tenant/Applicant in response has since moved this Tribunal by way of reference and a notice of motion application dated 24th May 2021 under Section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking to have the orders granted on 11th March 2020 allowing the Landlord to break into the premises and levy for distress within 15 days set aside on grounds that they were not aware of the application.

7. The Landlord then filed a preliminary objection on 4th June 2021 on the grounds that the Landlord/Tenant relationship had been terminated.

C. Jurisdiction;

8. The Jurisdiction of this Tribunal is in dispute.

D. The Landlord’s Claim;

9. The Landlord filed a reference and notice of motion application dated 11th March 2020 and acquired orders ex-parte from the Tribunal to break into the premises and order the Tenant to pay all the outstanding arrears.

10. In response the Tenant filed an application seeking to set aside the orders granted to the Landlord and in response the Landlord has filed a replying affidavit dated 4th June 2021.

11. The Landlord further filed a preliminary objection dated 4th June 2021 which pleadings form the basis of this claim.

E. The Tenant’s Claim;

12. The tenant has filed a notice of motion application dated 24th May 2021 seeking to set aside the said ex-parte orders as well as a further affidavit dated 24th June 2021.

13. Parties have filed submissions and the matter was fixed for ruling on 31st January 2022.

F. List of Issues for Determination

14. It is the contention of this Tribunal that the issues raised for determination are as follows;

Whether there exists a Landlord/Tenant relationship and as such whether the Tribunal has jurisdiction to determine this matter?

G. Analysis and Findings;

Whether there exists a Landlord/Tenant relationship and as such whether the Tribunal has jurisdiction to determine this matter?

15. It is clear that in exercising the powers conferred under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, this Honourable Court must restrict itself to the powers conferred to it under Section 12 of the said Act.The jurisdiction of this Tribunal as espoused under the provisions of Section 12 limits the jurisdiction of this Tribunal to dealing with disputes emanating from controlled tenancies.

16. Section 2 of CAP 301 defines a controlled tenancy as follows

“Controlled tenancy” means a tenancy of a shop, hotel or catering establishment—

(a) which has not been reduced into writing; or

(b) which has been reduced into writing and which—

(i) is for a period not exceeding five years; or

(ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof;

17. Section 2 of Cap 301definesa LandlordandTenantas follows:

“Landlord”, in relation to a tenancy, means the person for the time being entitled, as between himself and the Tenant, to the rents and profits of the premises payable under the terms of the tenancy

“Tenant” in relation to a tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding, and includes a sub-tenant

18. In this case the Landlord has filed a preliminary objection on the grounds that there is no subsisting Landlord-Tenant relationship between themselves and the applicants. The Landlord avers that the Tenant ceased to be a Tenant on 15th April 2020.

19. Based on the above averments this Tribunal ordered that a Rent Inspector visit the premises and assess the situation and find out whether the Tenant is still in occupation of the premises. The inspection was conducted and a report given on 9th July 2021.

20. Based on the report the inspector stated that the advocate for the Tenants identified some goods in the premises that belong to their client’s others having been auctioned and some stolen as alleged by the Tenant. Further the report states that the advocate of the alleged new Tenant did not give a clear explanation as to the ownership of the tools in the premises. It appears a few of the Tenants goods remained in the premises.

21. The Tribunal observes that the Landlord has failed to attach any proof of termination of tenancy between themselves and the applicant, further they have not attached a duly served notice seeking to evict the Tenant and or distress for rent arrears.

22. I have perused the orders of my brother chair dated 11th March 2020 as he then was and indeed find that its effect was to grant leave to commence distress for rent proceedings without hearing the Tenant as such on the part of the landlord they seem to have obtained leave from this Tribunal to break in and commence the said proceedings by misleading the Tribunal that the Tenant had locked premises and has never been seen again.

23. The Tenant is here now by way of a notice of motion dated 24th May 2021 almost 1 year 2 months down the lane seeking to set aside the said orders. I have keenly perused the application together with the replying affidavit of Kewal Singh Flora sworn on 4th June 2021 where in state that the said premises were let out in June 2020. I have further looked at the affidavit of Nancy Wanjiku Karemeri hoping to capture the reason for the delay to no avail all she states is that she moved to court immediately she realized she could not access her premises could this have been 1 year and 2 months after? This can only add credence to the Landlords averments that she could not be found neither was she paying rent. Yet had locked the premises.

24. In addition, a third party agent has been admitted to this cause as an interested party and in his affidavit Ephraim Murigo who clarifies the process leading to the eviction of the tenant.

25. I am clear in my mind that this horse has bolted though not called upon at this stage to get to the details of the application it is in the interest of justice and to save judicial time and having realized all parties have responded to the said application. I find that the Tenants claim can only lie in assessment of special damages to the extent of accounts by the Landlord of rent arrears until the day of the break orders by this tribunal vis a vis the goods found and auctioned and the goods currently in use by the new tenant if any as alleged.

26. I there proceed to order as follows;

a) The upshot is that the Landlord’s preliminary objection dated 4th June 2021 is hereby dismissed.

b) The Tenant’s Application dated 24th May 2021 is partially allowed to wit the orders of 11th March 2020 are not set aside but parties shall have liberty to file statement of accounts in the next 30 days each and valuation reports if need be.

c) The matter shall be scheduled for hearing as to assessment of damages in 90 days.

d) Costs shall be in the cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 31stday ofJanuary, 2022 in the presence of Bandafor theTenantand in the absence of theInterested Party.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL