[2024] KEBPRT 118 (KLR)

Gitau v Mbugua & another (Tribunal Case E428 of 2023) [2024] KEBPRT 118 (KLR) (24 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 118 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E428 of 2023

P May, Member

January 24, 2024

Between

John Mungai Gitau

Tenant

and

Geoffrey Kariuki Mbugua

Landlord

and

Wami Agencies

Agent

Ruling

1. The Tribunal made a determined the reference filed in the present dispute on 19th September, 2023. The tenant was directed to pay rent arrears and other utility bills within specific timelines. After the delivery of the said ruling, the tenant once again moved the Tribunal by filing the application dated 17th October, 2023 seeking for orders of stay against the proclamation notice dated 6th October, 2023.

2. The tenant averred that he had paid the outstanding rent arrears and was in the process of clearing the utilities. He therefore challenged the proclamation notice issued by the landlord. The landlord opposed the replying affidavit sworn by the landlord who averred that the tenant was not deserving the orders sought.

3. The parties elected to canvass the application by way of written submissions. I have considered the application, the response thereto and the submissions on record and would proceed as follows:

4. The jurisdiction of this Tribunal is espoused under the provisions of Section 12 of Cap 301. The limits of the jurisdiction are also set out explicitly therein. It is prudent to note that this Tribunal only has jurisdiction to deal with disputes emanating from controlled tenancies.

5. It only follows that the Tribunal can only act within the limits of its jurisdiction as was aptly discussed in the case of Republic v Business Premises Rent Tribunal & another Ex- Parte Albert Kigera Karume [2015] eKLR cited with approval the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195 where the Court dealt with the provisions of section 12 of Cap 301 as follows:“The tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied…. …. The powers of the tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the tribunal, but merely states what the tribunal may do within its area of jurisdiction…… It would be erroneous to think that section 12(4) confers on the tribunal any extra jurisdiction to that given by and under the Act elsewhere. For example, it is not within the tribunal’s jurisdiction to deal with criminal acts committed in relation to any tenancy nor is it within its jurisdiction to entertain an action for damages for trespass. These are matters for the courts and the tribunal cannot by way of a complaint to it by the landlord or tenant purport to deal with such matters. Section 12(4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy…. The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”.

6. Section 12(e) on the orders that the Tribunal can make against a tenant provides as thus: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;

7. It was the landlord’s testimony that the tenant had never complied with the orders of the Tribunal. I have perused the statements filed by the tenant. The Mpesa statements do not reveal the actual arrears and the months that the payments covered. The tenant has equally admitted to being in arrears in paying for the utility bills. It is therefore clear that the tenant has not approached the Tribunal with clean hands hence not deserving the orders sought. The tribunal is cognizant of the fact that the arrears may have accumulated further during the pendency of this proceedings.

8. In view of the foregoing, the following orders commend itself:a.The application dated 17th October, 2023 is dismissed.b.The landlord shall serve the tenant with an updated statement of account within 3 days. The tenant shall upon receipt of the statement pay the outstanding rent arrears and utility bills within 14 days.c.In default of (b) above, the landlord shall be at liberty to levy distress without any reference to the Tribunal.d.Each party shall bear their own costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF JANUARY 2024. HON. PATRICIA MAYMEMBERDelivered in the presence of;Malombo for the TenantMarta Waweru for the Respondent