[2021] KEBPRT 409 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 177 OF 2021 (NAIROBI)

GREATFOLD ENTERPRISES LIMITED......….....…….….…TENANT/APPLICANT

VERSUS

PINDO INVESTMENTS LIMITED……..................1ST LANDLORD/RESPONDENT

GA CONSULTANTS LIMITED……………………2ND LANDLORD/RESPONDENT

RULING

1. By a motion dated 22nd February 2021, the Tenant is seeking in pertinent part for a temporary injunction restraining the Landlord from unlawfully levying distress for rent and interfering with the tenant’s quiet occupation and lawful enjoyment of all that space known as Godown number B3 at Graylands investments Limited erected on L.R NO. 10426/47 Mavoko pending determination of the complaint.

2. The application is supported by the affidavit of the Tenant sworn on even date to which is attached a “Head of Terms subject to lease” agreement between PINDO INVESTMENTS LTD and PEMANENT FRUIT LIMITED whose term is expressed to be 5 years 3 months this from 1st April 2018. The same is unexecuted by the parties.

3. The Respondents upon being served with the application filed a motion dated 18th March 2021 seeking to discharge, vary and/or set aside the exparte injunctive orders of 24th February 2021 and to strike out the proceedings.

4. The Respondents are further seeking that the interim ex-parte injunctive orders dated 24th February 2021 be declared as having been obtained through falsehoods and concealment of material facts and hence vacated. The particulars of falsehoods and concealed material facts are set out on the face of the application.

5. Among the documents annexed to the application is a lease dated 1st May 2018 between PINDO INVESTMENTS LIMITED AND GREATFOLD ENTERPRISES LIMITED in respect of GODOWN NUMBER B 3, GRAYLANDS INVESTMENTS LIMITED situate on L.R. NO.10426/47, MAVOKO MUNICIPALITY for a term of 5 years 3 months from 1st May 2018 until 31st July 2023. The same is duly executed and attested by an advocate of the High Court.

6. In the case of THE OWNERS AND MASTER OF THE MOTOR VESSEL “JOEY” AND THE OWNERS AND MASTERS OF THE MOTOR TUGS “BARBARA” AND “ STEVE B” (2007) eKLR at page 7/15 it was held that the question of jurisdiction is a threshold issued and must be determined at the threshold stage using such evidence as may be placed before court. I need not reproduce the citation made therein.

7. Suffice to say that it is now settled law that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court and that it matters not whether the evidence is scanty or limited. Without jurisdiction, a court has no power to make one more step.

8. This Tribunal’s jurisdiction derives from Cap. 301, Laws of Kenya and section 2 defines what constitutes a controlled tenancy and excludes tenancies for periods of more than 5 years which do not have a termination clause other than for breach of covenant.

9. I have keenly perused the lease agreement annexed to the affidavit of MILLICENT GATWIRI KINYUA sworn on 18th March 2021 in support of the motion of even date and note that it is for a period of 5 years 3 months and has no termination clause in the currency of the term.

10. The period stipulated therein clearly ousts this honourable court’s jurisdiction.

11. In the premises, I refuse to make one more step in the matter and proceed to strike out the instant proceedings with the result that the ex-parte orders granted to the Tenant on 24th February 2021 are hereby set aside.

12. The costs of the proceedings assessed at Kshs.25,000/- are awarded to the Respondents as against the Tenant/Applicant.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28THDAY OF JULY 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Nabagara holding brief for Mr. Wachira for the Respondent

No appearance for the Tenant