[2024] KEBPRT 197 (KLR)

Kariuki v Kinoti (Tribunal Case E673 of 2023) [2024] KEBPRT 197 (KLR) (6 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 197 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E673 of 2023

P Kitur, Member

February 6, 2024

Between

Edward Kariuki

Tenant

and

Lawrence Kinoti

Landlord

Ruling

A. Parties And Background 1. The stated Landlord herein is an acknowledged business partner and friend to the stated Tenant herein.

2. The Landlord is represented by the firm of Maiyo Linet & Associates Advocates LLP.

3. The Tenant appears in person.

B. The Dispute Background 4. The Landlord and the Tenant appear to have entered into an engagement as business partners having taken over operation of a ‘Club and Restaurant’ from a third person who is not a party to these proceedings.

5. It is not clear whether a Tenancy Agreement was reduced to writing or if not in writing, what the clear terms were.

6. The arrangement continued uninterrupted until sometime in July 2023 when the stated Landlord, through Westbound Auctioneers commenced the process of distress for rent.

7. The Tenant thereafter proceeded to file a Complaint dated 11th July 2023 against the Landlord under s. 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301 and additionally filed an application of even date 11th July 2023 seeking interim relief pending hearing of the Complaint.

8. The main complaint was that the Landlord issued the Tenant with an unlawful verbal notice to vacate and that they issued the Tenant with a proclamation notice demanding non existing rent arrears of Kshs. 270,700/=.

9. In response, the Landlord filed a Replying Affidavit sworn on 12th August 2023 alongside a Notice of Preliminary objection dated 9th August 2023 raising the following points of law;i.The application is fatally defective, null, and void as the Applicant has not complied with the provisions of law.ii.The Notice of Motion Application is fatally defective in form and substance as it is not accompanied by a plaint or a recognized pleading.iii.There is no suit in court capable of supporting the orders sought as the application is in violation of Order 40 of the Civil Procedure Rules, 2010. iv.The court does not have jurisdiction to entertain this application since there is no tenant-landlord relationship between us since we are business partners.v.The Notice of Motion Application dated 14th July 2023 is misconceived, Scandalous, Frivolous, Vexatious and otherwise an abuse of the Court's process and the same should be dismissed with costs.

10. Parties took directions and agreed to dispose of the Notice of Preliminary Objection by way of Written Submissions which were duly filed by both parties.

C. List of Issues for Determination 11. Having given full consideration to the Preliminary Objection raised, the issue for determination is;i.Whether there exists a Landlord-Tenant relationship between the partiesAnd thus clothing the Tribunal with Jurisdiction to hear and determine the matter.

D. Analysis And Findings 12. Jurisdiction is everything and once challenged, a determination should be made before the Tribunal can proceed with further disposal of any matter thereto. The Tribunal has no option but to down its tools where want of jurisdiction is deemed or assumed not to exist. In the case of Owners of the Motor Vessel ‘Lillian” (s) v Caltex Oil (Kenya) Ltd [1989] KLR1, the Court stated 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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

12. The question therefore arising is whether there exists a tenancy relationship between the Tenant and the Landlord subject to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

13. That the Landlord and the Tenant are business partners who appear to have entered into an engagement over the operation of a ‘Club and Restaurant’ from a third person who is not a party to these proceedings is an issue on which the entire suit is predicated.

14. Paragraphs 3, 4, 5 & 6 of the Tenant’s Supporting Affidavit appear to disclose an engagement between the parties herein that would not ordinarily be termed as a Landlord–Tenant relationship. The Landlord further discloses in his Replying Affidavit that the parties herein leased the premises jointly with returns in profit. He further states that his issue with the stated Tenant herein is the non-payment of his rent contribution and return of capital contribution.

15. The description above does not fall under what would be termed as a Landlord–Tenant relationship.

16. In Republic v Chairperson - Business Premises Rent Tribunal at Nairobi & another Ex-Parte Suraj Housing & Properties Limited & 2 others [2016] eKLR, the Judge cited with approval the case of Pritam v Ratilal and Another Nairobi HCCC No. 1499 of 1970 [1972] EA 560 where it was stated as follows:“Therefore the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such 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 a Tribunal; otherwise, the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction.”

12. From the foregoing, there does not exist a relationship that can be termed as a Landlord and Tenant relationship, which therefore ousts this tribunal’s jurisdiction to hear and determine the dispute.

13. I therefore proceed to order as follows;

E. Ordersa. The Landlord’s Preliminary Objection is hereby upheld.b. The Tenant’s Complaint and Application are hereby struck out.c. Costs are awarded to the Landlord.

HON P. KITURBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 6TH FEBRUARY 2024 IN THE ABSENCE OF THE PARTIES.HON P. KITURBUSINESS PREMISES RENT TRIBUNAL