[2021] KEBPRT 61 (KLR)
The tribunal found that the lease in question was a fixed term lease of 5 years and 6 months, commencing on 15th January 2016, and had since expired. The tenant did not express interest in renewal as required by the lease, and the landlord clearly indicated no intention to renew. The tribunal's jurisdiction under...
Source-derived case information.
- Citation
- [2021] KEBPRT 61 (KLR)
- Parties
- Applicant: Immaculate Wanjiku; Respondent: Francis Ndungire
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E370 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- application dismissed for want of jurisdiction
- Legal Topics
- Business Premises Tenancy, Fixed Term Lease, Jurisdiction of Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Immaculate Wanjiku
Applicant
Francis Ndungire
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Does the Business Premises Rent Tribunal have jurisdiction over a fixed term lease exceeding five years where there is no intention to renew?
- 2 Is the tenant entitled to protection from eviction under cap 301 in the circumstances?
Ratio Decidendi
The tribunal found that the lease in question was a fixed term lease of 5 years and 6 months, commencing on 15th January 2016, and had since expired. The tenant did not express interest in renewal as required by the lease, and the landlord clearly indicated no intention to renew. The tribunal's jurisdiction under Cap 301 is limited to leases of five years or less, or where the parties' conduct creates a protected tenancy. As neither condition was met, the tribunal held it lacked jurisdiction to entertain the tenant's reference and application. The tenant is bound by the terms of the contract, and the landlord is entitled to pursue remedies for possession and arrears as prescribed by law.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The tenant's reference and application dated 3rd August 2021 are dismissed with costs for want of jurisdiction.
- The landlord is at liberty to commence distress and eviction proceedings for rent arrears in the manner prescribed by law.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO. E370 OF 2021 NAIROBI
IMMACULATE WANJIKU.................................................APPLICANT/TENANT
AND
FRANCIS NDUNGIRE.............................................RESPONDENT /LANDLORD
RULING
1. The Landlord served a notice to terminate the tenancy dated 25th May 2020 to the Tenant to vacate the premises by 5th August 2021.
2. Aggrieved by this notice the Tenant filed a reference on 3rd August 2021 seeking protection under cap 301 from eviction on5th of August 2021. Accompanying this reference was a notice of motion dated 3rd August 2021 under certificate seeking injunctive reliefs.
3. The same were granted pending hearing inter partes. The landlord has since filed a replying affidavit sworn by one Francis Maina Ndugire on 8th September 2021. Together with a preliminary objection dated 8th September 2021on the grounds that this was a fixed term lease for 5 years 6 months and there was no intention to renew the same thus in the absence of any renewal the Tenant was bound to yield the premises to the Landlord. Thus robbing this tribunal off its jurisdiction. The lease has been annexed.
4. The main issue for determination herein is the question of jurisdiction as raised in the preliminary objection does this tribunal have jurisdiction? And the answer is NO.
5. I have taken the liberty to peruse the lease agreement and find it to be a fixed term lease though the copy provided is not dated or witnessed but it is signed by the parties and the Tenant has not denied the same. Clause 4. 5 Required the tenant to show interest in the renewal of the said 5 years 6 months lease 3 months before expiry they did not but of importance is that this Tribunal deals with leases of 5 years and below or if above the parties ought to carryout themselves in a manner that creates an intention to have a landlord tenant relationship I do not see any such intention.
6. I note that it is indeed a fixed term lease of 5 years and 6 months commencing on 15th of January 2016 and the same has since expired. There is no termination clause and the landlord having shown clearly intention by his actions not to renew the same or continue with the same the tenant is bound by the contract they signed.
7. This tribunal has no jurisdiction in the circumstances and proceeds to order as follows;
a) The Tenants reference and application dated 3rd August 2021 are dismissed with costs for want of jurisdiction.
b) The Landlord is at liberty to commence distress and eviction proceedings for rent arrears in the manner prescribed by law.
HON A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 28TH DAY OF DECEMBER, 2021 in the presence of Kiemafor theLandlordandOkangifor theTenant..
HON A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL