[2022] KEBPRT 697 (KLR)

Glorious River Church & 3 others v Andaje (Tribunal Case E110 of 2021) [2022] KEBPRT 697 (KLR) (Civ) (5 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 697 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E110 of 2021

Gakuhi Chege, Vice Chair

September 5, 2022

Between

Glorious River Church

1st Applicant

Zechariah Mwagandi

2nd Applicant

Donald Mwavita

3rd Applicant

Habel Mwakio

4th Applicant

and

Amina Carol Andaje

Respondent

Ruling

1. Through a motion dated December 3, 2021, the applicant moved this Tribunal seeking for orders against the respondent to open and give way and/or allow members of Glorious River Church unhindered access to the church at Mtopanga/Bamburi in order to continue with their daily business and Alternatively, the applicant be given leave to break and remove the offending padlock and/or any other object blocking the entry under the supervision of the OCS, Kiembeni Police Station.

2. The applicant also sought that the said opening be supervised by an officer from the Tribunal for the purposes of taking inventory of the church equipment.

3. Prayer 4 seeks for a prohibitory order restraining the Respondent by herself, her agents especially Portways Auctioneers, employees or servants from blocking, victimizing, harassing and/or in anyway whatsoever interfering with the applicant’s quiet enjoyment of the tenancy in the demised premises pending the hearing and determination of this complaint.

4. Prayer 5 seeks for a declaration that the attempted eviction of a protected tenant by use of auctioneers is unlawful and illegal.

5. Prayer 6 seeks that the Respondent be compelled to accept rent failure to which the Same be deposited with the Tribunal.

6. The application is supported by the affidavit of Donald Mwavita sworn on December 3, 2021wherein at paragraph 2, he deposes as follows:-“That the church which is duly registered under society Act is a tenant to the Respondent (annexed and marked ‘D-1’ is a copy of certificate of registration).

7. At paragraph 3 thereof, he continues to depose as follows:-“That the church pays payable rent on quarterly basis and had paid the 2nd quarterly of this year but was yet to remit quarter that is covering the period of July to October 2021”.

8. It is the applicant’s case that the church herein is a protected tenant under cap 301, and the Respondent is supposed to follow the right procedure to obtain possession.

9. Interim orders were issued on December 3, 2021directing reopening of the premises and unhindered access to the church premises with the OCS, Kiembeni Police Station being directed to ensure compliance.

10. The Respondent through a motion dated April 11, 2022 moved this Tribunal seeking for an order that the tenant do deliver vacant possession of the premises situate at Mtopanga within Mombasa on subdivision no. 1506, 1507 and 1505. The same is supported by the respondent’s affidavit sworn on April 11, 2022 which at paragraph 8 explains how the applicant came into possession of the suit premises as follows:-“That in my absence, my younger brother without any consent entered into a tenancy agreement dated February 4, 2014between Zachariah Mwagandi & Mohammed Ousman Mukwana wherein they agreed that Kshs.30,000/- per month be paid to him with an option to purchase the property at Kshs/-(10,000,000/- (annexed herewith is a copy of the said agreement dated 4th February 2014 and marked “ACA3”).

11. The application is opposed through a replying affidavit of Donald Mwavita sworn on 22nd April 2022 in his capacity as the secretary of Glorious River Church.

12. Before dealing with any matter before it, a court is enjoined to interrogate whether it has the requisite jurisdiction to hear and determine the case at the threshold stage as without jurisdiction, the court has no option but to down its tools in line with the Locus Classicus case of Owners of the Motor Vessel “Llian S” v Caltex Oil (Kenya) Ltd(1989) eKLR where it was held as follows at pages 8-9/27:-“……………….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”.

13. Although the issue of jurisdiction has not been raised by either party before me, I am entitled to consider it on my own motion at any stage of the proceedings in line with the court of appeal decision in the case of Kenya Ports Authority v Modern Holdings (EA) Limited(2017) e KLR wherein the court cited its own decision in Adero &another v Ulinzi Sacco Society Ltd(2002)1 KLR 577 as follows:-1. ……….2. The jurisdiction either exists or does not ab initio and the non-constitution of the forum created by statute to adjudicate on specified disputes could not of itself have the effect of conferring jurisdiction on another forum which otherwise lacked jurisdiction.3. Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.4. Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.5. Where a cause is filed in a court without jurisdiction, there is no power on that court to transfer it to a court of competent jurisdiction”.

14. The Tribunal’s jurisdiction is conferred by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301, Laws of Kenya in respect of controlled tenancies.

15. A controlled tenancy under the said Act is defined in section 2(1) as a tenancy of a shop, hotel or catering establishment:-a.Which has not been reduced into writing orb.Which has been reduced into writing and which:-i.is for a period not exceeding five years orii.Contains provisions for termination otherwise than for breach of covenant within five years from the commencement thereof oriii.Relates to premises of a class specified under subsection (2) of this section”.

16. I have looked at the tenancy agreement datedFebruary 4, 2014 annexed to the supporting affidavit to the Respondent’s application dated April 11, 2022marked ‘ACA-3’ and in particular clause 3 thereof which stipulates as follows:-“That this agreement shall confer upon the tenant the right to use the property solely for workshop purposes namely for conducting Christian Worship Services under the Glorious River Church provided that in addition, the tenant shall be at liberty to carry on other activities connected to the purposes thereto”.

17. According to Oxford Advanced Dictionary, a church is defined as follows:-“A Christian house of worship, a building where Christian religious services take place”.

18. It is therefore clear that the user of the suit premises is neither “a shop, hotel or catering establishment” within the meaning and interpretation of section 2(1) of cap. 301, Laws of Kenya and this Tribunal lacks jurisdiction to adjudicate over the instant dispute.

19. Secondly, the applicant has not established that there exists a landlord/tenant relationship between it and the Respondent as the aforesaid agreement was entered into with one Mohammend Ousman Mukwana as the Landlord. Existence of a landlord/tenant relationship is a legal prerequisite to the exercise of jurisdiction by this Tribunal. In absence of such a relationship, the Tribunal has no jurisdiction (see the case of Pritam v Ratilal &another(1972) EA 560 at page 563).

20. In the premises, I find and hold that this Tribunal has no jurisdiction to hear and determine the instant dispute and the interim orders given in the matter were issued in error and ought to be discharged/set aside forthwith.

21. I therefore proceed to make the following final orders in this matter:-i.This tribunal has no jurisdiction to hear and determine this suit as the suit premises is not a controlled tenancy within the meaning and Interpretation of Section 2(1) of cap 301, Laws of Kenya and the suit is hereby struck out with costs to the Respondent.ii.The interim orders given in this matter are hereby discharged/set aside.iii.The Respondent’s costs are assessed at Kshs.20,000/- against the Applicant.

It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 5TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Tindi for the LandlordJumbale for the Tenant