[2020] KEBPRT 56 (KLR)
The Tribunal found that the applicant had conceded there was no landlord-tenant relationship with Airport Warehousing Ltd, making the proceedings against them misconceived. The tenancy between the applicant and Saku Development Co. Ltd was created by a letter of offer for a fixed term of five years and three months,...
Source-derived case information.
- Citation
- [2020] KEBPRT 56 (KLR)
- Parties
- Applicant: Josca Ventures Limited; Respondent: Airport Warehousing Limited; Respondent: Regent Auctioneers; Respondent: Saku Development Co. Ltd
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 319 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Jurisdiction
- Outcome
- Reference and notice of motion struck out for want of jurisdiction; interim and consequential orders discharged; costs awarded to landlord.
- Legal Topics
- Controlled Tenancy, Jurisdiction of Tribunal, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josca Ventures Limited
Applicant
Airport Warehousing Limited
Respondent
Regent Auctioneers
Respondent
Saku Development Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Jurisdiction
Legal Issues
- 1 Whether there existed a landlord-tenant relationship between the applicant and Airport Warehousing Ltd.
- 2 Whether the tenancy in question is a controlled tenancy under section 2 of Cap 301.
- 3 Whether the Tribunal has jurisdiction to entertain the reference and notice of motion.
Ratio Decidendi
The Tribunal found that the applicant had conceded there was no landlord-tenant relationship with Airport Warehousing Ltd, making the proceedings against them misconceived. The tenancy between the applicant and Saku Development Co. Ltd was created by a letter of offer for a fixed term of five years and three months, with no termination clause except for breach, thus falling outside the definition of a controlled tenancy under section 2 of Cap 301. Consequently, the Tribunal lacked jurisdiction to entertain the reference and notice of motion. The proceedings were further tainted by concealment of material facts. The Tribunal therefore struck out the reference and notice of motion as...
Court Disposition
Reference and notice of motion struck out for want of jurisdiction; interim and consequential orders discharged; costs awarded to landlord.
Orders
- The Tenant’s reference dated 18th March 2020 and the notice of motion dated 18th March 2020 are struck out as incompetent for want of jurisdiction as the tenancy is not controlled within the meaning of section 2 Cap 301.
- The interim orders issued on 19th March 2020 and all other consequential orders are hereby discharged.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 319 OF 2020 (NAIROBI)
JOSCA VENTURES LIMITED................................................TENANT/APPLICANT
VERSUS
AIRPORT WAREHOUSING LIMITED……..…...LANDLORD/1ST RESPONDENT
REGENT AUCTIONEERS………………………......…AGENT/2ND RESPONDENT
RULING
The Tenant/Applicant by the application dated 26th March 2020 conceded that the Landlord in respect of the suit premises is Saku Development Ltd. The proceedings which were instituted against Airport Warehousing Ltd were misconceived as there was no Landlord and Tenant relationship between the Applicant and Airport Warehousing Ltd.
The Tribunal has perused all the pleadings in this matter and the written submissions of the advocates for the Landlord/Respondent which are on record and makes the following findings;
1. The Applicant/Tenant has not sought leave of the Tribunal to amend the reference and the notice of motion dated 18th March 2020 to terminate the proceedings against Airport Warehousing Ltd who are not Landlords of the Applicant/Tenant.
2. The Applicant/Tenant having conceded that Airport Warehousing Ltd are not Landlords, the reference and the notice of motion dated 18th March is misconceived and incompetent in law.
3. The letter of offer dated 14th June 2019 which was duly executed by the Applicant/Tenant created a tenancy agreement for a period of 5 years and 3 months commencing from 1st July 2019 up to and ending on 30th September 2024. The letter of offer has no termination clause for reasons other than breach.
The Tenancy between the Applicant and the Landlord is not a controlled tenancy within the meaning of section 2 of Cap 301. The Tribunal adopts the submissions of the advocates for the Landlord and the authorities cited on the issue of jurisdiction of the Tribunal.
All in all, the Tribunal is satisfied that the Tenant’s reference is misconceived and is an abuse of the process of the Tribunal. The orders were also obtained by concealment of material facts contrary to the provisions of section 13 of Cap 301.
The Tribunal makes the following orders;
1. The Tenant’s reference dated 18th March 2020 and the notice of motion dated 18th March 2020 are struck out as incompetent for want of jurisdiction as the tenancy between the Applicant/Tenant and the landlord (Saku Development Co. Ltd) is not controlled within the meaning of section 2 Cap 301.
2. The interim orders issued on 19th March 2020 are and all other consequential orders are hereby discharged.
3. The Tenant/Applicant shall pay the Landlord (Saku Development Co Ltd) costs of the reference assessed at shs 60,000 all inclusive.
4. Costs shall be paid within 14 days from the date of deliver and/or service of this order in default the Landlord shall recover the same by way of distress as part of arrears of rent.
Ruling dated and delivered this 11th day of June 2020 in the presence of Mr Odhiambo holding brief for Kenneth Wilson for the Respondent/Landlord. Tenant’s advocateabsent.
MBICHI MBOROKI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL