[2021] KEBPRT 411 (KLR)
The tribunal found that the lease between the parties was for a fixed term of 5 years 3 months, with no termination clause during its currency except for breach of covenant. According to section 2 of Cap. 301, such a lease does not constitute a controlled tenancy. As a result, the tribunal lacked jurisdiction to...
Source-derived case information.
- Citation
- [2021] KEBPRT 411 (KLR)
- Parties
- Applicant: Greatfold Enterprises Limited; Respondent: R World Investments Limited; Respondent: GA Consultants Limited
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 178 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application to Strike Out
- Outcome
- Application and proceedings struck out for want of jurisdiction; costs awarded to respondents.
- Legal Topics
- Controlled Tenancy Definition, Jurisdiction of Tribunal, Lease Agreements, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Greatfold Enterprises Limited
Applicant
R World Investments Limited
Respondent
GA Consultants Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application to Strike Out
Legal Issues
- 1 Whether the tenancy between the parties constitutes a controlled tenancy under section 2 of Cap. 301, Laws of Kenya.
- 2 Whether the Business Premises Rent Tribunal has jurisdiction to hear and determine the dispute.
- 3 Whether the proceedings should be struck out for want of jurisdiction.
Ratio Decidendi
The tribunal found that the lease between the parties was for a fixed term of 5 years 3 months, with no termination clause during its currency except for breach of covenant. According to section 2 of Cap. 301, such a lease does not constitute a controlled tenancy. As a result, the tribunal lacked jurisdiction to entertain the dispute. The proceedings were therefore instituted in the wrong forum and had to be struck out. The ex-parte orders previously granted were set aside, and costs were awarded to the respondents.
Court Disposition
Application and proceedings struck out for want of jurisdiction; costs awarded to respondents.
Orders
- The entire reference is struck out for want of jurisdiction.
- The ex-parte orders given on 24th February 2021 are set aside forthwith.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 178 OF 2021 (NAIROBI)
GREATFOLD ENTERPRISES LIMITED......…….....….….…TENANT/APPLICANT
VERSUS
R WORLD INVESTEMENTS LIMITED.................1ST LANDLORD/RESPONDENT
GA CONSULTANTS LIMITED……………………2ND LANDLORD/RESPONDENT
RULING
1. Before me is an application dated 22nd February 2021 by the Tenant in which it seeks for restraining orders against the Landlord/Respondents from interfering with its quiet enjoyment and occupation of the space known as Godown number B4 and B5 at Graylands Investments Limited erected on L.R. No. 10426/47 Mavoko Municipality pending the determination of the complaint.
2. The application is supported by the Tenant’s affidavit of even date and the grounds on the face of the application.
3. Among the documents annexed to the supporting affidavit is a lease for 5 years 3 months with a commencement date of 1st May 2018.
4. On the other hand, the Landlord filed a notice of motion dated 18th March 2021 seeking to strike out the proceedings in this cause and discharge, vary or set aside the ex-parte orders dated 24th February 2021.
5. Among the documents annexed to the application is a lease dated 1st May 2018 which is duly executed by both parties and attested by an advocate.
6. The lease is for a period of 5 years 3 months and has no termination clause during its currency other than for breach of covenant.
7. The application to strike out the proceedings is premised upon lack of jurisdiction on the part of the Tribunal under section 2 of Cap. 301, Laws of Kenya.
8. I have perused the pleadings, as well as the said lease and taken into consideration the definition of a controlled tenancy under section 2 of Cap. 301 and agree with the Landlord’s submissions that the proceedings before me ought to be struck out on grounds of want of jurisdiction.
9. The tenancy relationship entered into between the Tenant and the Landlord is not a controlled one and the proceedings were instituted in the wrong forum.
10. In line with the Locus classicos case of owners of motor vessel “Likian S” vs.- Caltex Oil (Kenya) Ltd (1989) eKLR, I shall down my tools and strike out the entire Reference with costs to the Landlord/Respondents.
11. The orders given on 24th February 2021 are hereby set aside forthwith.
12. The Respondents costs are assessed at Kshs.25,000/- against the Tenant.
It is so ordered.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 23RD DAY OF JULY 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:-
Kamande for Landlord
Momanyi for Tenant