[2021] KEBPRT 230 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E098 OF 2021 (NAIROBI)

JOSEPH NDIRANGU KIRUTHU T/A

KIRSTON BUILDERS.......................................................................TENANT

VERSUS

DAVID WAWERU KINYANJUI................................................LANDLORD

RULING

1. The Tenant filed the present reference. Contemporaneously the Tenant filed the application brought by way of certificate dated 7th May 2021 seeking for a plethora of orders whose gist was basically injunctive orders to restrain the landlord from harassing them and interfering with the tenant’s quiet possession of the premises.

2. The landlord upon being served duly entered appearance and appointed an advocate to act on his behalf. The landlord elected to oppose the application by filing the Preliminary objection dated 19th May 2021. The preliminary objection dated 19th May 2021 is the subject of this ruling.

3. It is important to set out the background of the dispute between the parties herein. It is not contested that the parties entered into a lease which was reduced into writing on 14th January, 2009. The Landlord Tenant relationship subsisted till sometimes in May 2021 when the landlord allegedly issued a verbal notice of eviction from part of the premises and even refused to accept rent.

4. The term herein was for a period of 10 years.

5. The Landlord responded to the application by filing a Notice of Preliminary Objection on 7th May, 2021 stating that this Tribunal lacks the jurisdiction to determine the application and the Reference herein.

6. The preliminary objection being one that goes into the core of this matter as it raises issues of jurisdiction thus takes precedence as it is capable of dispensing off with the application and reference in its entirety.

7. The jurisdiction of this Tribunal is espoused under the provisions of Section 12 of Cap 301. The limits of the jurisdiction are also set out explicitly therein. It is prudent to note that this Tribunal only has jurisdiction to deal with disputes emanating from controlled tenancies.

8. It only follows that the Tribunal can only act within the limits of its jurisdiction as was aptly discussed in the case of Republic V Business Premises Rent Tribunal & Another Ex- Parte Albert Kigera Karume [2015] eKLRcited with approval the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195 where the Court dealt with the provisions of section 12 of Cap 301 as follows:

“The tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied…. …. The powers of the tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the tribunal, but merely states what the tribunal may do within its area of jurisdiction…… It would be erroneous to think that section 12(4) confers on the tribunal any extra jurisdiction to that given by and under the Act elsewhere. For example, it is not within the tribunal’s jurisdiction to deal with criminal acts committed in relation to any tenancy nor is it within its jurisdiction to entertain an action for damages for trespass. These are matters for the courts and the tribunal cannot by way of a complaint to it by the landlord or tenant purport to deal with such matters. Section 12(4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy…. The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”.

9. Controlled tenancy has been defined at section 2 of the act as follows:

“controlled tenancy” means a tenancy of a shop, hotel or catering establishment— (a) which has not been reduced into writing; or

(b) 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 commencement thereof; or

(iii) relates to premises of a class specified under subsection (2) of this section

10. Having set out the background to the dispute in this matter and the applicable law, the preliminary issue for determination is whether there existed a landlord tenancy relationship at the time of filing the present application and reference. It is not disputed that the parties entered into a lease for a period of 10 years. In every sense, therefore it was not a controlled tenancy.

11. It has also been submitted by the tenant that the landlord subsequently refused to receive rent.

12. The parties are in agreement that a lease of that kind was entered into for that term as such who am I to tamper with it as drawn?

13. As earlier discussed, this Tribunal draws its jurisdiction from the provisions of Section 12 of Cap 301.

14. I am guided and fortified by the position in SamuelKamau Macharia & Another –vs- Kenya Commercial Bank Ltd & 2 Others (2012) eKLRwhere the court held that : -

“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by the law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”

15. The Landlord’s preliminary objection is merited as this Tribunal lacks the jurisdiction to hear the present reference and the subsequent applications. It has to therefore down its tools.

Disposition:

1. The Landlord’s preliminary objection dated 19th May 2021 is allowed and the reference is dismissed in its entirety with no orders as to costs.

HON P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF SEPTEMBER 2021 IN THE PRESENCE OF KAHUTHU FOR THE TENANT AND OMONDI HOLDING BRIEF FOR GACHIE FOR THE LANDLORD/APPLICANT.

HON P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL