[2021] KEBPRT 494 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 247 OF 2021 (NAIROBI)

FAMILY PENTECOSTAL MINISTRIES.....................TENANT/ APPLICANT

VERSUS

NEEMA MANAGEMENT LIMITED................. LANDLORD/RESPONDENT

RULING

1. By a motion dated 16th March 2021, the Applicant is seeking for orders to restrain the Respondent from interfering in anyway with the space situate on 7th Floor, Tumaini House L.R NO.209/4280, NAIROBI pending hearing and determination of this suit.

2. The applicant further seeks for an order to compel the Respondent to provide him with updated statements of accounts in respect of alleged rent arrears which are disputed.

3. The application is supported by the Applicant’s affidavit of Dr. John Odhiambo Mudany sworn on 16th March 2021 and the grounds on the face of the application.

4. The gist of the Applicant’s case is that it has been a tenant of the Respondent since 2008 in respect of the suit premises and has been faithfully and diligently paying rent.

5. The Applicant deposes that it renewed the tenancy agreement with the Respondent on 26th August, 2020 for a period of 5 years one month. The Applicant admits falling into rent arrears on account of effects of Civid-19 pandemic when churches were closed.

6. On 9th March 2021, the Respondent issued the Applicant with a notice of eviction and/or termination of lease on account of outstanding rent of Kshs.1,062,068. 00.

7. The said notice is annexed as FPM-1 which calls upon the Applicant to pay the said amount by 16th March, 2021 failing which the issue would be handed over to debt collectors without further reference to it. The said letter is copied to TRADE WIDE AUCTIONEERS.

8. It is the said letter that provoked the instant proceedings.

9. The Respondent filed grounds of objection to the effect that the tenancy was not a controlled one hence this Tribunal has no jurisdiction to hear the matter.

10. The Respondent further contends that the supporting affidavit offends Rule 9 of the Oaths and statutory Declarations Rules and that the same is not factual and bears no annextures in support of the averments.

11. The Respondent further contends that it is an agent of a known principal and does not assume any liability from the tenancy agreement entered by and between the Applicant and the Respondent’s principal.

12. The Respondent finally contends that the motion is devoid of merit and is an affront to the dignity of the court and a classic example of abuse of the process of the Honourable court.

13. The Applicant filed a further affidavit annexing letters of offer dated 16th October, 2017 and 26th August, 2020 marked FRM1 & 2 respectively.

14. Both parties filed their respective submissions addressing the issues in dispute with the main one being whether this Tribunal has jurisdiction to hear and determine the suit.

15. I intend to deal with this issue as a determination thereof shall have the effect of either terminating or escalating it for a determination of all other issues.

16. The jurisdiction of this court is conferred by section 2 of Cap 301 Laws of Kenya which defines controlled tenancy to mean a tenancy of a shop, hotel or catering establishment:-

(a) Which has not 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 or

(iii) Relates to premises of a class specified under subsection (2) of this section.

17. Subsection (2) of the said act provides that:-

“The minister may by notice in the Gazette, specify by reference to rent paid or reteable value entered in a valuation for Rating Act (Cap.266) classes of shops, hotels or catering establishments tenancies of which shall be controlled tenancies regardless of the term or period of such tenancies”

18. I have looked at the letters of offer exhibited by the Applicant as annextures FPM1 & 2 and note that Clause 2 thereof stipulates the term to be a period of five (5) years and one (1) month.

19. The said letters of offer are signed by both parties with the NATIONAL COUNCIL OF CHURCHES of KENYA being the landlord and FAMILY PENTECOSTAL MINISTRIES being the Tenant.

20. In the LOCUS CLASSICUS case of OWNERS OF THE MOTOR VESSEL LILIAN S VS-CALTEX OIL (KENYA) LTD (1989) eKLR The Court of Appeal per Nyarangi JA (as he then was) at page 8-9 had the following to say:-

“I think that 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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction"

21. Guided by the foregoing decision, I hold that this court has no jurisdiction to deal with the tenancy subject matter herein as it is for a period exceeding 5 years.

22. I therefore proceed to dismiss the application dated 16th March, 2021 and the entire reference for want of jurisdiction.

23. The Respondent is awarded costs of Kshs.15,000/- against the Applicant.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Kithinji holding brief for Chimei for Tenant/Applicant

Mr. Chamia for the Respondent