[2025] KEBPRT 274 (KLR)

Hussein v Okinda; Ochuodho (Interested Party) (Tribunal Case E037 of 2024) [2025] KEBPRT 274 (KLR) (Civ) (25 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 274 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E037 of 2024

CN Mugambi, Chair

April 25, 2025

Between

Abdisalam Hassan Hussein

Tenant

and

Daniel Odhiambo Okinda

Landlord

and

Martha Atieno Ochuodho

Interested Party

Ruling

Introduction 1. The Interested Party’s Application dated 8. 10. 2024 seeks the following orders;-a.That the Landlord be prohibited from unlawfully terminating the tenancy and evicting the Tenant from in any manner interfering with the tenancy.b.That the Interested Party be allowed to deposit her rent at the Tribunal.c.That the Tenant be made a party to this case.d.That the orders of 22. 8.2024 issued by the Tribunal be set aside.e.That the Tribunal has no jurisdiction to hear the 1st Respondent’s Reference and Application dated 12. 8.2024. f.That the OCS, Bondo Police Station do assist in the implementation of the orders sought.

2. The Interested Party’s prayer to be made a party to this suit was allowed on 8. 10. 2024 and is therefore spent.

The Interested Party’s depositions 3. The Affidavit in support of the Interested Party’s Application may be summarized as follows;-a.That at the beginning of June 2024, the Interested Party entered into a lease agreement over Plot No 22B Bondo town (hereinafter the suit property) at an agreed rent of Kshs 13,000/= which the Tenant paid together as one month’s rent deposit.b.That on 12. 6.2024, the agents of the Landlord M/S Odongo Owino & Company Advocates also received rent from the 1st Respondent (A. Hassan Hussein) without informing him the suit premises was already occupied.c.That when the Interested Party took possession of the suit premises on 6. 06. 2024, the same was vacant.d.That in the month of October, 2024, the Landlord declined to accept rent.e.That in late September, 2024, the Landlord served the Interested Party with a notice to vacate the premises and which notice the Interested Party contends was illegal and irregular.f.That from a perusal of the court records, the Interested Party has discovered that there are two References and an Application dated 12. 8.2024 and to which she is not named as the Respondent.g.That the order emanating from the said Application of 12. 8.2024 was not directed to the Interested Party and was procured through non-disclosure of a material fact that the 1st Respondent has never taken possession of the suit premises and that it is the Interested Party who has all along been in occupation of the suit premises.h.That the 1st Respondent not being in occupation of the premises, he is not a Tenant of the Landlord and has therefore no locus to file the Reference and consequently the Tribunal has no jurisdiction to hear and determine this dispute.i.That the impugned order is incapable of enforcement in the circumstances.j.That the Tribunal further lacks jurisdiction to entertain the 1st Respondent’s claims as his lease with the Landlord was for a period of twenty (20) years.

The 1st Respondent/Tenant’s depositions 4. The 1st Respondent’s Replying affidavit may be summarized as follows;-a.That the Interested Party’s Application is an afterthought and tailored to defeat justice.b.That the 1st Respondent is currently in occupation of the suit premises and his stock is intact in the said premises.c.That this Tribunal has the jurisdiction to hear and determine this suit.d.That the invitation to the Tribunal by the Interested Party to allow her to deposit rent in the Tribunal amounts to a nullification of the Respondent’s agreement with the Landlord dated 29. 5.2024. e.That the Interested Party has not attached any evidential material to show the existence of the tenancy between himself and the Landlord.f.That the Interested Party has not demonstrated that the firm of Odongo Owino & Company Advocates were acting for the Landlord.g.That the Landlord has orally confirmed to the Tribunal that the only agreement he is aware of is the agreement dated 29. 5.2024 and indeed there is a consent to that effect dated 1. 10. 2024. h.That the Interested Party has confirmed that she trespassed on the 1st Respondent’s premises sometimes in June 2024 in an act of impunity.

The Landlord’s/2nd Respondent’s depositions 5. The Replying affidavit of the Landlord Daniel Odhiambo Okinda may be summarized as follows;-a.That all along it is the Interested Party who has been in occupation and possession of the suit premises.b.That while it is true that the Landlord entered into a twenty (20) year lease agreement with the 1st Respondent, the lease has now been preferred as the 1st Respondent never took possession or occupation of the suit premises.c.That due to the delay by the 1st Respondent to take possession of the suit premises, and the Landlord’s dire need of money, the Landlord gave out the premises to the Interested Party who has since taken possession and occupation of the suit premises.d.That the 1st Respondent cannot show that he is in possession or occupation of the suit premises or that he has stocked the same.e.That there is no Landlord-Tenancy relationship between the 1st Respondent and the Landlord and therefore the Tribunal has no jurisdiction to entertain the 1st Respondent’s case.f.That the Landlord was coerced into consenting that the 1st Respondent was in occupation of the suit premises and the consent is incapable of enforcement since the 1st Respondent is not in occupation of the suit premises.g.That the Landlord has not declined to receive rent from the Interested Party.

6. The Interested Party has sworn a further affidavit wherein she has deponed that she has paid to the Landlord the rent for October and November 2024 and the Landlord has accepted the same; further the Landlord has also accepted the December rent.

Analysis and determination 7. The issues that arise for determination in this Application are in my view the following;-a.Whether the Tribunal has the jurisdiction to hear and determine the dispute between the 1st Respondent and the 2nd Respondent/Landlord.b.Who between the Interested Party and the 1st Respondent is the rightful Tenant of the Landlord.c.What orders ought to be issued in disposing of the Application.

Issue A: Whether the Tribunal has the jurisdiction to hear and determine the dispute between the 1st Respondent and the 2nd Respondent/Landlord 8. The Interested Party and the Landlord have challenged the jurisdiction of the Tribunal on the basis that the lease agreement between the 1st Respondent and the Landlord is for a period of twenty (20) years and further that there does not exist a Landlord/Tenant relationship between the said parties. I have perused the tenancy agreement between the 1st Respondent and the Landlord and at clause 7 thereof, it is provided as follows;-“Either party shall be at liberty to terminate the tenancy with a valid reason by giving to the other party sixty (60) days’ notice in writing or in the event the Tenant fails to remit rent as agreed then the contract shall automatically lapse.”

9. Clause 7 of the agreement cited above brings the tenancy between the parties within the ambit of controlled tenancies as described at Section 2(1) of Cap 301 where a controlled tenancy has been described as a tenancy of a shop, hotel or catering establishmenta.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 OR(ii)contains provision for termination otherwise than for breach of covenant within five years from the date of commencement thereof OR(iii)relates to premises of a class specified under subsection (2) of this Section.It is my finding therefore that clause 7 of the tenancy agreement aforesaid satisfies the requirements of Section 2(1)(b)(II) of Cap 301 and the tenancy between the 1st Respondent and the Landlord created thereof is a controlled tenancy. The Tribunal therefore has the jurisdiction to hear and determine this dispute between the 1st Respondent and the Landlord.

Issue B: Who between the Interested Party and the 1st Respondent is the rightful Tenant of the Landlord 10. The 1st Respondent has deponed in his affidavit that he took possession of the premises in May 2024. I have perused the tenancy agreement dated 29. 05. 2024 and clause 3 thereof states as follows;-“the tenancy begins on the 1st August 2024 and runs for a renewable terms of twenty years.”A plain reading of this statement shows that the 1st Respondent could only have taken possession of the suit premises from 1. 08. 2024. On the other hand, the Interested Party has deponed that she entered into a lease agreement and took possession of the premises in June 2024. This would mean that as at the time the Interested Party took possession of the premises, the tenancy of the 1st Respondent had not commenced as it was to commence on 1. 08. 2024. The Interested Party could therefore not be said to have trespassed on the suit premises. The difficulty that arises is that as at the time the Interested Party was purporting to enter into an oral tenancy agreement with the Landlord, there was already a binding agreement between the 1st Respondent and the Landlord.

11. In my view, the Landlord could not have purported to enter into another lease agreement for the same property before terminating the earlier valid lease agreement between him and the 1st Respondent. The Landlord was bound under the provisions of clause 7 of the lease agreement between himself and the 1st Respondent to give the 1st Respondent a termination notice of sixty (60) days. In any event, the tenancy between the parties being a controlled tenancy, the Landlord was required to issue the statutory notice under Section 4(2) of the Act before the tenancy could be terminated.

12. The premises was therefore not available to be let out to the Interested Party while the lease agreement between the 1st Respondent and the Landlord was still alive. Put differently, the Landlord had no premises to give out to the Interested Party.

13. The Interested Party and the Landlord have placed much weight on the allegation that the Interested Party is the one who is in possession. My view is that this does not dislodge the 1st Respondent as the proper Tenant of the suit premises and I find reliance in the Act where it describes a Tenant as follows;-“Tenant” in relation to a tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding and includes a sub-tenant.”It is my finding therefore that the 1st Respondent is the rightful Tenant of the suit premises until such a time that his tenancy is properly terminated under the provisions of Cap 301.

Issue C: What orders ought to be issued in disposing of the Application 14. In disposing of this matter, I therefore do not find any merits in the Interested Party’s Application dated 8. 10. 2024 and the same is hereby dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25THDAY OF APRIL 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the absence of the parties