[2024] KEBPRT 64 (KLR)

Kaigi v Deluxe Motors Ltd & another (Tribunal Case E416 of 2023) [2024] KEBPRT 64 (KLR) (29 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 64 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E416 of 2023

Andrew Muma, Chair & J Rop, Member

January 29, 2024

Between

Charity Wangui Kaigi

Applicant

and

Deluxe Motors Ltd

1st Respondent

Sedco Consultants Ltd

2nd Respondent

Ruling

A. Parties And Representatives 1. The Applicant, Charity Wangui Kaigi, is an occupant of a section of the suit property (hereinafter the “Tenant”).

2. The firm of Kibet & Partners Advocates represents the Applicant in the matter.

3. The 1st Respondent, Deluxe Motors Ltd, is the owner in respect to the Ground Floor- Stall no 20&21 comprised in the building erected on the property known as Land Reference Number 209/2439/9 situated at Koinange Street within Nairobi County within the Republic of Kenya (hereinafter the “Landlord”) whereas the 2nd Respondent, Sedco Consultants Ltd is the director for Sedco Consultants Ltd and the agent (hereinafter the “Agent”).

4. The firm of Njuguna Kimani Nduhiu Advocates represents the Respondents in this matter.

B. Background Of The Dispute 5. The Tenant moved this Tribunal vide an application both dated 24thApril 2023 under a Certificate of Urgency seeking orders that:I.The Tribunal issue an ex-parte interim temporary injunction order against the Landlord, their agents, servants, employees, heirs or assigns restraining them from denying the Tenants access to part of the suit premises, including hanging lines, water and locking out the Tenant or evicting, harassing and intimidating the Tenant and/or in any manner interfering with the Tenant’s tenancy in suit premises.II.The OCS Central Police Station be ordered to ensure compliance and provide the Tenant with security and ensure peace prevails.

6. Vide an Order dated 27th April, 2023 the Tribunal certified the matter urgent and ordered that a temporary injunction be issued against the Landlord, their agents, servants, employees, heirs or assigns from denying the Tenants access to part of the suit premises, including hanging lines, water and locking out the Tenant or evicting, harassing and intimidating the Tenant and/or in any manner interfering with the Tenant’s tenancy in the suit premises pending the hearing of the application inter-partes on 6th June 2023.

7. Additionally, the Tribunal mandated the OCS Central Police Station to enforce the Landlord's compliance, provide the Tenant with security and ensure the maintenance of peace.

8. In response to the Order given by the Tribunal, the Landlord moved the Tribunal vide an application dated 2nd May 2023 under a Certificate of Urgency seeking the stay of the Tribunal Order delivered on 27th April 2023 by the Honorable Gakuhi Chege.

C. The Tenant’s Claim 9. The Tenant approached this Tribunal vide a Reference dated 24th April 2023 and an application dated 24th April 2023.

10. The Tenant avers that the Landlord, through his representatives, provided her with an unlawful termination notice dated 13th April, 2023, and an additional letter dated 25th March 2023.

11. Furthermore, the Tenant avers that the Landlord interfered with and disrupted her peaceful enjoyment of the rented premises, despite her not having any outstanding rent payments.

12. The Tribunal vide an Order dated 27th April, 2023 certified the matter urgent and ordered that a temporary injunction be issued against the Landlord, their agents, servants, employees, heirs or assigns from denying the Tenants access to part of the suit premises, including hanging lines, water and locking out the Tenant or evicting, harassing and intimidating the Tenant and/or in any manner interfering with the Tenant’s tenancy in the suit premises pending the hearing of the application inter-partes on 6th June 2023.

D. The Landlord’s Defence 13. The Landlord avers that he and the Tenant entered into a Lease Agreement dated 19th December 2022 in respect of Ground Floor- Stall no 20&21 premised in the property situated at Koinange Street within Nairobi County which Lease commenced on 1st March 2023 and was to run for a term of six years.

14. The Landlord avers that, through the Agent, a joint inspection of the premises with the Tenant on 25th March 2023 revealed various breaches by the Tenant.

15. Subsequently, a letter was sent to the Tenant on the same day confirming the damages and directing the Tenant to proceed with repairs.

16. Additionally, the Landlord avers that the Tenant failed to address the damages as directed, prompting the Agent to send another letter on 13th April 2023, highlighting the Tenant's inaction regarding the previous damages and additional damages caused by the Tenant.

17. Additionally, the Landlord states that the Tenant vacated the premises without carrying out any repairs or providing notice.

18. The Landlord also states that the assessed cost of repairs for the damages amounted to kes 232,100, and claims that the Tenant has not presented any alternative valuation to challenge the quoted repair costs.

E. List Of Issues For Determination 19. In my respectful view, I find that the sole issue that falls for determination is:Whether the Tribunal has jurisdiction to hear and determine this matter

F. Analysis & Determination Whether the Tribunal has jurisdiction to hear and determine this matter? 20. Although neither party has raised this issue, it is important that I address it at this point.

21. In the case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition no 19 of 2018, the court stressed the fact that jurisdiction is everything and that a court may even raise a jurisdictional issue suo moto. The Supreme Court stated:“A jurisdictional issue is fundamental and can even be raised by the court suo moto as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR.

22. The learned Judge, Odunga J. drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” v Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 further stated that:“What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…”

23. Additionally, in the case of Dhirajlal Shah &anotherv Vijay Amritlal Shethia [2018] eKLR the Court of Appeal made reference to the case of Owners of Motor Vessel “Lilian” (S) v Caltex Oil Kenya Ltd [1989] KLR 1 where Nyarangi JA held as follows:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction ……”

24. Based on the aforementioned jurisprudence, it is evident that the Tribunal has the authority to independently raise jurisdictional issues and is inversely prohibited from conducting proceedings if it lacks jurisdiction.

25. Additionally, Section 2 of the Landlord and Tenants (Hotels, Shops and Catering Establishments) Act Cap 301 (“the Act”) defines a controlled tenancy as;“a tenancy of a shop, hotel or catering establishment—a.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; orii.contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof;

26. Section 12(1)(a) of the Act further states that a Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power to determine whether or not any tenancy is a controlled tenancy.

27. Having given full consideration to the documents filed by the parties to this Reference, I note that there exists a lease agreement dated 19th December 2022 that runs for a term of six (6) years which lease agreement falls outside the ambit of a controlled tenancy as depicted under Section 2 of the Act.

28. In light of these findings, it is my humble opinion that the matter falls outside the scope of the Tribunal and therefore I lack the jurisdiction to hear and determine the matter.

29. Additionally, as per the Landlord’s submissions, given the recent findings of the Tenant’s departure from the premises, the Tribunal does not have the jurisdiction to determine the matter.

H. Orders 30. The upshot is that the Tenant’s Reference and Application is hereby dismissed with no orders as to costs.

HON A. MUMAAG CHAIR/MEMBERHON. JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 29TH DAY OF JANUARY 2024in the presence of Gatune for the Tenant and in the absence of the Landlord.HON A. MUMAAG CHAIR/MEMBERHON. JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNAL