[2024] KEBPRT 192 (KLR)

Kandia v Maina (Tribunal Case E947 of 2023) [2024] KEBPRT 192 (KLR) (16 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 192 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E947 of 2023

N Wahome, Member

January 16, 2024

Between

Nyaga Kandia

Landlord

and

Peter Maina

Tenant

Ruling

1. By a Reference dated July 26, 2023, the Applicant lodged a complaint said to be brought under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 of the Laws of Kenya (hereinafter referred to as “The Act).

2. The landlord’s grievance was that;-“The Tenant has failed to pay rent for the last six (6) months and which rent continues to accumulate. I pray this court to intervene and be given the necessary orders plus costs of the case.”

3. The Reference was accompanied by a notice of motion dated the even date of September 26, 2023. It was under a certificate of urgency. The orders sought therein were;-a.Spentb.That an order be issued for the Applicant/landlord herein through an appointed auctioneer to levy distress to the Respondent/Tenant’s moveable items to recover rent arrears amounting to Kshs. 57,000/=.c.That an order be issued for the OCS Kirua police station to ensure compliance of these orders and that peace prevails while levying distress.d.That this Honourable court be pleased to waive the 10% duty filing fees on distress.e.That the costs of this application be borne by the Tenant.

4. In his supporting affidavit sworn on the September 26, 2023, the landlord asserted that:-i.He rented the demised premises to the Respondent at Kshs. 12,000/= per month.ii.As at the time of filing this suit on the 26. 9.2023, he was owed Kshs. 72,000/= equivalent to rent for six (6) months.iii.He had been condemned to pay costs of Kshs. 15,000/= in …..BPRT Case No. 1013 of 2023 and therefore the amount owed to him was Kshs. 57,000/=.iv.The demised premises was his only source of income and that he had a loan to service.

5. On his part, the Tenant in response filed the replying affidavit sworn on the October 16, 2023. He accused the landlord of not being candid with the Tribunal as what he presented to court was in complete contrast with the reality on the ground.

6. It was the Tenant’s evidence that:-i.He never owed the landlord any rent in arrears leave alone Kshs. 57,000/=.ii.The rent payable for the demised premises was Kshs. 4,000/= per month and not Kshs. 12,000/= as stated by the landlord. He annexed an agreement marked “SMM-01” to the effect.iii.The landlord had locked up his business premises in April, 2023 without reason or justification and that he filed Meru BPRT case No. E013 of 2023. iv.By an order of this Tribunal issued on the 11. 05. 2023, the landlord was ordered to re-open the premises and in case of default, the Tenant to take possession with support of the OCS Kirua police station. The orders are Tenant’s annexure “SMM-04. ”.v.It was while gaining entry into the demised premises in the company of the OCS Kirua police station and the local chief, that one Stephen Raibuni Itunga appeared and claimed the ownership of the demised premises.vi.He henceforth started paying rent to the said Stephen Raibuni Itunga until August, 2023 when despite the court orders earlier made on the 11. 5.2023, the landlord locked up the demised premises again.vii.The tribunal in BPRT E013/2023 aforesaid issued further orders on the August 3, 2023 compelling the landlord not to interfere with his tenancy and condemned him to pay costs of Kshs. 15,000/=. The order is annexed as “SMM-06. ”.viii.Both himself and the landlord were issued with notices to vacate the demised premises by the said Stephen Raibuni Itunga and which he complied with and left the demised premises on the 9. 10. 2023 having met all his rental obligations.ix.For the times that the landlord had closed down his business, he had suffered losses amounting to Kshs. 176,150/= which he claimed.

7. The tenant therefore sought for the dismissal of the landlord’s suit with costs.

8. The landlord further filed what he referred to as “Responding Affidavit” sworn on October 31, 2023. He insisted on his right to levy distress for the rent owed to him by the Tenant being six (6) months’ rent in arrears. He also still insisted that the monthly rent payable for the demised premises was Ksh. 12,000/=.

9. It was the case for the landlord that the Tenant had triggered bad blood between him and the owner of the demised premises for his own benefit and to avoid paying rent. He claimed that on his part, he had paid rent to the owner of the demised premises up to November 2023. That by these actions, the Tenant had also defamed him.

10. He therefore sought for orders pursuant to his notice of motion dated September 26, 2023.

11. I have also had the benefit of perusing the Tenant’s submissions dated December 5, 2023 and confirm having considered all the materials placed before me by both parties. From the same, I deduce that the issues that present themselves for determination are the following; -A:Whether this Tribunal has jurisdiction to preside over this matter.B:Whether the termination notices issued by Stephen Raibuni Itunga to the parties herein were legitimateC:Whether the Landlord has proved his case as pleaded in the Reference and in the notice of motionD:Whether the Tenant has proved his case for damagesE:Who should bear the costs of this suit

Issue No. A: Whether this Tribunal has Jurisdiction to preside over this matter 12. Section 2(1) of the Act provides that a controlled tenancy means a tenancy of a shop, hotel or catering establishment;a.Which has not been reduced into writing; orb.Is for a period not exceeding five (5) years from the commencement thereof

13. From the above, it is clear that indeed the relationship entered into by the parties in January, 2023 was one as envisaged under Section 2(1) of the Act as quoted above. However, the Tenant has indicated that since May, 2023, he was paying rent on the premises to one Stephen Raibuni Itunga. That he eventually left the demised premises on the October 9, 2023 after notice to the same effect by the said Stephen Raibuni Itunga. This averment by the Tenant has not in my view been controverted or impeached by the landlord.

14. The question that therefore begs for an answer is whether in those circumstances this court has the wherewithal to preside over this matter. Whether it has requisite jurisdiction to oversee and determine the issues herein.

15. The courts have pronounced themselves unequivocally on the issue of jurisdiction and how courts should treat the same. In the case of; Motor Vessel “Lillians” vs Caltex Oil (Kenya) Ltd [1989] KLR 1, the court had this to say;-“Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has 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.”

16. The court in the same case of Motor Vessel “Lillians” (supra) proceeded to state that;-“where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgment is given.”

17. In ELC Appeal No. 13 of 2020, at Eldoret, David Cullen (Appellant) v Samuel Kiptalai and Others, the court held that;-“It should be noted that a court or a tribunal cannot arrogate itself jurisdiction exceeding it by law or legislation. The jurisdiction of a court or a tribunal is not a mere technicality but that which goes to the root or heart of the matter.”

18. From the foregoing and in view of the reality that the Tenant had been paying rent for the demised premises to a third party namely; Stephen Raibuni Itunga, and that he vacated the demised premises on the October 9, 2023, I make or determine that this tribunal has no jurisdiction to hear this matter nor to judge the same. In this, I find comfort in the case of; Pritam v Ratilal & Another [1972] EA at page 560 held that;-“Therefore, the existence of the relationship of landlord and tenant is a prerequisite to the application of the provisions of the Act. Where such a relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by the Tribunal.”

19. In J.R. No. 25 of 2012 at Mombasa; Republic v The Chairman, Business Premises Rent Tribunal & Italian Gelati (K) Ltd.; the court held that;“whether or not the Tribunal acted within jurisdiction turns on the status of the relationship between the interested party and the Applicant on the 21. 2.2012, when it made the order. On my evaluation of the evidence presented I have found that the Auctioneers had already handed over empty premises to the landlord. At the time of presenting the matter before the Tribunal the interested party stated unequivocally that the landlord had locked up the premises. There is evidence that those premises were empty. It would seem therefore that the Applicant had completely dispossessed the interested party. The Tenancy had been terminated and there was no tenancy capable of being preserved by the Tribunal. There was no longer a tenant-landlord relationship and so the Tribunal acted without jurisdiction. The proper forum for the 1st Respondent’s grievance was a civil court. That is where it should have sought intervention. The order made by the Tribunal is therefore amenable to an order of certiorari and any further proceedings pending before it can be stopped by a prohibitory order.”

20. The court concluded by holding that;-“Then there was evidence that the premises were indeed empty. It may not have been unreasonable for the auctioneer to hand over possession of these empty premises to its owners, the Applicant, if however, the interested party is of the strong view that the conduct of the Applicant was unlawful, then it is not without remedy. The interested party can invoke the civil process.”

21. I therefore determine that the issues being raised in this forum by the landlord belong elsewhere. I would therefore dismiss both the Reference and the motion thereof with costs. But in the event that I may have fallen into error in, by determination above, I will address all the other identified issues.

Issue No. B: Whether the termination notices issued by Stephen Raibuni Itunga to the parties herein were legitimate 22. The purported notice to terminate tenancy by Stephen Raibuni Itunga to the landlord and tenant herein is dated May 18, 2023. a casual look at the same speaks to the fact that the same cannot be such a notice as supposed for non-compliance with clear provisions of the law.

23. Section 4(2) of the Act provides that;-“A landlord who wishes to terminate a controlled tenancy or to alter, to the detriment of the tenant, any term or condition, in or right or services enjoyed by the Tenant under such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

24. Regulation 4(1) of the Regulations to the Act provide that;-“A notice under Section 4(2) of the Act by a landlord shall be in form A in the schedule to these Regulations.”

25. The pre-requisite of a lawful termination notice were well and extensively elaborated in the locus classicus case of; Fredrick Mutua Muilnge t/a Kitui Uniform vs Kitui Teachers Housing Cooperative Society Limited ELC Appeal No. 26 of 2016. It held that;-“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy Section 4(1) of the Act states in very clear language that, a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant or, any such tenancy shall be altered, otherwise than in accordance with the specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground(s) upon which termination is sought. The prescribed notice in form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”

26. These provisions are mandatory and call for complete and strict compliance with. However, in this case, the head tenant (landlord) did not file any reference or complaint before this tribunal either under Section 6(1) or 12(4) of the Act against, the landlord who issued the obviously illegal notice and this Tribunal cannot pronounce itself effectively on the issue when an alleged principal prayer is a stranger and at large.

27. It is also not in dispute that the demised premises reverted to the owner thereof namely; Stephen Raibuni Itunga back on the October 9, 2023 and therefore, any pronouncement by the Tribunal would be in vain and without jurisdiction.

Issue No. C: Whether the landlord has proved his case as pleaded in the Reference and in the notice of motion 28. It is the contention of the head tenant (landlord) that he is owed Kshs. 72,000/= by the Tenant being rent arrears at Kshs. 12,000/= per month. On his part, the Tenant asserted that he had paid the landlord rent at Kshs. 4,000/= per month between January and April, 2023 totaling to Kshs. 12,000/=. He had also paid the rents for May 2023 to October 9, 2023 to Mr. Stephen Raibuni Itunga. The Tenant produced annexure “SMM-04” to demonstrate his agreement with the landlord and where the rent was agreed at Kshs. 4,000/= per month.

29. Therefore, going by the said agreement and in view of the provisions of the Evidence Act and in particular Sections 97 and 98 thereof, I would uphold the said agreement voluntarily entered into by the parties herein and determine that the rent payable for the demised premises was Kshs. 4,000/= per month.

30. The landlord has not disputed that the Tenant paid rents for the demised premises to Stephen Raibuni Itunga between May, 2023 and October 9, 2023 when he left. Therefore, that confirms that the Tenant was not in any rent arrears when he left in October 2023. Even if he was in such arrears, the same would have only been at Kshs. 24,000/= when calculated at Kshs. 4,000/= per month for the alleged six (6) months.

31. However, the relief for distress for rent is not available to the landlord after the tenant bolted from the demised premises in October, 2023. In Misc. Civil Application No. 138 of 2020- Simon Ngomonge t/a Dollar Auctions vs George Kithi, the court in determining the validity of distress had this to say;-“An illegal distress is one which is wrongful at the very outset, that is to say either where there was no right to distrain or where a wrongful act was committed at the beginning of the levy invalidating all the subsequent proceedings.”

32. The court went on to hold that;-“The following are instances of illegal distress; a distress by a landlord after he has parted with his reversion; a distress by a person in whom the reversion is not vested; a distress when no rent is in arrears; or…….. a distress off the premises or in the highway.”

33. In the present case, the landlord has been divested of the reversion as relates to the demised premises. The tenant has denied being in any rent arrears and the landlord has failed to prove otherwise and finally the Tenant has moved out of the demised premises.

34. It is trite law that, the landlord herein can only if at all, claim the purported rent arrears as a debt through a civil or commercial process and not through this tribunal.In the case of; C.Y.O. Owayo v George Hannington zephania & Another Civil Appeal No. 2 of 2003, the court of Appeal held that;“however, the illegality of their action did not end there and this brings us to the 2nd reason why we felt the actions of the Respondent and auctioneer were illegal. It is not controverted that the premises in which Davis was a tenant and in respect of which rent arrears had accumulated was a building in Homabay town owned by Sonyaco. That was where in law the distress for rent should have been levied. However, the Respondent/Auctioneer, with the knowledge and approval of the Respondent levied distress upon the Appellant’s house on L.R. No. 3603, Got Rabuor. That was a different building altogether. Infact it was a residential house and not a business premises.”

35. In the case of; Kassam Ali Bhogodia v M.A. Nasser [1963] EA 610, the court held that;-“The defendant levied distress not on the plaintiff’s goods in the flat but on the plaintiff’s office at No. 1 Wilson Street. Since the rent of the office was not in arrears, and Jagjivan Mulji & Bros Ltd was not the landlord of the office, the distress was plainly illegal.”

36. This therefore follows that the prayer to levy distress must fail. The Tenant and his goods are no longer in the demised premises. The landlord has not demonstrated any right of reversion over the premises and the rent claimed is not only exaggerated as from the agreement between the parties but also been paid to the actual landlord.

Issue No. D: Whether the Tenant has proved his case for damages 37. The Tenant in his replying affidavit sworn on the October 16, 2023, at paragraph 24 thereof, claimed damages at Kshs. 176,150/=. However, it is settled law that an affidavit is not a pleading as aspired under order 2 of the Civil Procedure Rules. In Civil Appeal No. 173 of 2004, Stephen Boro Githua vs Family Finance Building Society Ltd & Others, the court had this to say;-“As is trite law the contents of an affidavit constitute evidence on oath. An affidavit does not constitute a pleading. A pleading constitutes of a petition, summons, a statement of claim or demand or a defence, a reply to a defence or counter-claim, all of which are subject to amendment, unlike an affidavit which is evidence.”

38. It then follows that the Tenant never pleaded damages which he purported to claim in his affidavit. No materials were also placed before the court in proof of the blanket claim of Kshs. 176,150/= for damages.In Civil Appeal No. 67 of 201, China Wu Yi Limited vs Wilson Gititu, the court of Appeal held that;-“Special damages must not only be specifically claimed (pleaded) but also strictly proved….for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of continuity and particularity of proof required depends on the circumstances and nature of the acts themselves.”

39. The upshot of this is that, the special damages of Kshs. 176,150 were never pleaded nor any attempt made to proof the same. That prayer is therefore declined.

Issue No. E: Who should bear the costs of this suit 40. The provisio to Section 27 of the Civil Procedure Act provides the following;-“Provided that the costs of any action, causes or other matter or issue shall follow the event unless the court of judge shall for good reason otherwise order.”

41. I do confess that I have no good cause nor reason to depart from the wisom of the provisio to Section 27 of the Act. I would therefore grant the costs of both the reference and the motion both dated September 26, 2023 to the Tenant.

Final disposition 42. In conclusion, it is my view that the determination on the notice of motion dated September 26, 2023 has fully compromised the reference of the same date. I therefore find that the orders that commend themselves to me are the following;-a.That the Reference and notice of motion application dated September 26, 2023 are struck out.b.That for avoidance of doubt, this Tribunal lacks the requisite jurisdiction to try the issues as contained in both the Reference and the motion dated September 26, 2023. c.That the Tenant’s prayer for damages at Kshs. 176,150/= is equally struck out.d.That costs are awarded to the Tenant assessed at Kshs. 20,000/= only.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF JANUARY 2024. HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Mr. Njeru for the RespondentMr. Nyaga Kandia present in person- Tenant