[2022] KEBPRT 696 (KLR)

Intime Capital Limited v Ndola (Tribunal Case E725 of 2021) [2022] KEBPRT 696 (KLR) (Civ) (11 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 696 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E725 of 2021

Gakuhi Chege, Vice Chair

August 11, 2022

Between

Intime Capital Limited

Applicant

and

Wellington Nduku Ndola

Respondent

Ruling

1. Before me is a motion dated April 6, 2022 in which the landlord seeks for striking out of the proceedings brought by the tenant for lack of jurisdiction. It also seeks for setting aside of the orders given on February 1, 2022 and for the tenant to hand over vacant possession of the portion it occupies in the suit property.

2. It is the landlord’s case that the tenancy agreement entered into between it and the tenant indicates at paragraph 3 clause (g) that the property is residential in the following terms:-“The tenant covenants with the landlord……….. to use the premises for residential purposes only for one family and not to carry on or permit to be carried on any trade or business of any kind whatsoever”.

3. The said agreement is annexed to the supporting affidavit of Kwame Kariuki sworn on April 6, 2022 as annexure ‘KK2’. The tenancy agreement is executed by both parties and duly witnessed.

4. As such the landlord contends that the orders issued herein were made without jurisdiction as the suit premises is not business but residential. The tenancy agreement by the time of the said order had also lapsed and as such the same should be set aside and pleadings struck out.

5. The application was served upon counsel for the tenant on April 19, 2022 as per the affidavit of service of Benson Munyoki Muema sworn on April 20, 2022.

6. When this matter came up on May 9, 2022, the tenant’s counsel indicated that she had uploaded grounds of opposition on the e-filing portal and this tribunal ordered that the same be printed and also served upon the landlord’s counsel. By the time of writing this ruling, the said grounds of opposition were not on record.

7. Parties were also directed to file submissions in respect of the application but only the landlord’s counsel complied.

8. I am now required to determine whether to allow or refuse the application. I am further required to determine who is liable to pay costs.

9. The main issue for determination is whether this tribunal had jurisdiction to issue the orders made on February 1, 2022. It has been pleaded that the tenancy agreement entered into between the two parties herein related to a residential premises and that the tenant was not required to use the premises for business purposes. This contention has not been controverted by way of affidavit evidence by the tenant.

10. I have noted that the same agreement was annexed to the supporting affidavit sworn by the tenant on November 20, 2021 as annexure ‘NNN-2’ but the previous counsel for the landlord did not file any response to the application nor a preliminary objection on the question of jurisdiction. As such, when the orders of February 1, 2022 were made, there was no joinder on the question of jurisdiction. Had the same been raised, it is obvious that this tribunal would have decided it as a preliminary issue before making the impugned orders.

11. I have been refereed to various decisions on the issue of jurisdiction by counsel for the landlord as follows:-i.Samuel Kamau Macharia &another – vs- Kenya Commercial Bank & 2others (2012) eKLR.ii.Peter Gichuki Kinga’ra – vs- Independent Electoral and Boundaries Commission & 2others (2013) eKLR.iii.Macfoy – vs- United Africa Co. Limited (1961) 3 ALLER 1169. iv.Kenya Ports Authority – vs- Modern Holdings (EA) Limited (2017) eKLR.v.Owners of the Motor Vessel Lilian ‘s’ – vs- Caltex Kenya Limited (1989) KLR 1.

12. All the decisions are binding on this tribunal and I associate myself with the summary given in the case of Kenya Ports Authority – vs- Modern Holding (E.A) Limited (2017) eKLR where the law on jurisdiction was summarized as follows:-1. The jurisdiction either exists or does not ab initio….2. 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.3. 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”.

13. In view of the pleadings filed herein and the provisions of section 2(1) and 12 (1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301, Laws of Kenya, it is clear that this tribunal had no jurisdiction to deal with the matter filed by the tenant as the suit premises was let out to him for residential purposes.

14. As such and in line with the decision in the case of Macfoy – vs- United Africa Co Ltd (1961) 3ALLER 1169, the orders made on February 1, 2022 are a nullity and ought to be set aside for want of jurisdiction.

15. I therefore make the following final orders:-(i)The application dated April 6, 2022 is hereby allowed and the tenants reference and all proceedings taken pursuant thereto are hereby struck out for want of jurisdiction.(ii)The orders given on February 1, 2022 are hereby set aside.(iii)The costs of the proceedings assessed at Kshs 30,000/- are hereby granted to the landlord.(iv)Prayer 4 of the application is hereby denied for want of jurisdiction.

16. It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kinyanjui holding brief for Kouna for Landlord/ApplicantWacheke holding brief for Odero for Tenant/Respondent