[2021] KEBPRT 313 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 239 OF 2021 (NAIROBI)

GEORGE GICHERU NGATIRI..............TENANT/APPLICANT

VERSUS

JANE KANINA KIBE....................LANDLORD/RESPONDENT

RULING

1. By a motion dated 20/4/2021, the Tenant/Applicant moved this Tribunal seeking for an order of reinstatement into the premises known as L.R. 209/138/57, Gatomboya Bar pending hearing of the application.

2. He also seeks for an order to compel the Landlord/Respondent to immediately and unconditionally release back to him all the goods seized during the breaking into the premises.

3. The Tenant further seeks that the Landlord/Respondent be restrained from auctioning his goods pending hearing and determination of the application.

4. Finally, he seeks that the orders issued on 8th April 2021 be set aside and/or vacated.

5. The application is supported by the affidavit of Jane Njeri Kibe sworn on 30/4/2021 in which she deposes that on 29th April 2021, a group of men purporting to be auctioneers under instructions of the Landlord trespassed, vandalized and carted away her property and barred her from entering the premises.

6. The deponent states that her late husband one James Kibe run the business at Gatomboya house since 1986.

7. Upon enquiry, the Applicant was served with the order of 9th April 2021 on 29th April 2021. She deposes that the instant proceedings took place without her knowledge as she was never served with the pleadings and summons which led to issuance of the said order.

8. It is the Applicant’s case that there was an order issued by the High Court in civil case no. 85 of 1996 barring the Landlord from evicting her and that the Landlord acted in breach of the same.

9. The Applicant deposes that the actions undertaken by the Landlord are in contempt of the said court order and that she stood to suffer great prejudice, financial loss and exposure to unnecessary detriment as well as denial of justice.

10. The application is opposed through a replying affidavit of the Landlord sworn on 3rd June 2021 in which he reiterates the contents of his affidavit sworn on 12th March 2021 in support of the application of even date.

11. The Landlord deposes that the Applicant voluntarily vacated the premises on 29th April 2021 upon being given a copy of the order by police officers and an inventory of all the properties removed therefrom was prepared and she signed the same. The inventory is marked GNN-1.

12. After she vacated the premises, the Landlord leased the same to one Francis Mbugua Kihara with effect from 1st May 2021 in terms of annexture GG-2(lease agreement). The new Tenant took possession and is undertaking extensive repairs and renovations of the premises.

13. It is the Respondent’s case that the relationship between him and the Applicant having been terminated with effect from 1st February 2021 under section 4(2) and 10 of cap. 301, this Tribunal lacks the requisite jurisdiction to hear and or determine any dispute that may exist between them.

14. He further contends that this Tribunal has no jurisdiction to review or set aside orders that have already been executed.

15. In regard to the High court order in civil case no. 85 of 1996, the Landlord states that he could not remember the facts that gave rise to it and his then advocate died a few years back and his office was thereafter closed.

16. The Landlord deposes that there was no way the High Court could have intended to protect the Plaintiffs therein

17. From future lawful termination of their tenancy in accordance with provisions of Cap. 301, Laws of Kenya and that the parties therein are different from those in the present matter.

18. On 6th May 2021, the parties were directed to file written submissions and both complied.

19. I have considered the pleadings as well as the submissions filed herein and the issues for determination are:-

(a) Whether the application dated 30th April 2021 ought to be allowed or denied.

(b) Who is liable to pay costs thereof?

20. The instant proceedings were initiated by the Landlord through an application dated 12th March 2021 wherein he sought for an order of vacant possession against the Tenant on the basis of a notice to terminate tenancy dated 17th November 2020 served upon her.

21. No reference was filed by the Tenant to oppose the notice as a result of which the same took effect under section 10 of Cap. 301 on 1st February 2021 as expressed therein.

22. Having considered the said application and there having been no objection thereto, I allowed the same as prayed.

23. The Tenant has not in any way stated that she was never served with the said notice of termination or that there is a pending reference in opposition thereto.

24. In the light of the foregoing, I do not see what useful purpose the prayer for setting aside or review of my previous order would serve.

25. Secondly, the Tenant/Respondent has not controverted by way of a further affidavit the allegations contained in the landlord’s replying affidavit including the fact that she was removed from the suit premises and the same given out to a third party who is not before court.

26. It has been held in the case of Re Hebtulla properties ltd (1979) eKLR at page 9/11 by the superior court as follows:-

“The Tribunal shall…………..have power 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…..

The “recovery of possession” must have meant 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”.

27. In the premises, this Tribunal having given orders in favour of the Landlord and the same having been executed and the premises given to a third party has no jurisdiction to order the Landlord to give back the premises to the Applicant.

28. The upshot of my foregoing analysis and findings is that the application must fail and is hereby dismissed with costs to the Respondent/Landlord.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 3RD DAY OF SEPTEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Kangata for the Landlord

Miss Kihara holding brief for Chege for the Tenant