[2025] KEBPRT 149 (KLR)

Keith Muoki t/a Shanzu Beachfront Apartments Ltd v Eden Beach Management Ark by Chevis Company Ltd & another (Tribunal Case E222 of 2024) [2025] KEBPRT 149 (KLR) (21 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 149 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E222 of 2024

Gakuhi Chege, Chair & J Osodo, Member

February 21, 2025

Between

Keith Muoki t/a Shanzu Beachfront Apartments Ltd

Applicant

and

Eden Beach Management Ark by Chevis Company Ltd

1st Respondent

Eden Beach Apartment

2nd Respondent

Ruling

A. Dispute Background 1. The tenant/applicant moved this Tribunal vide a reference dated 4th October 2024 pursuant to Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, seeking for restraining orders against the Respondents from interfering with its operation area i.e reception, offices, apartments, stores, its employees and clients pending hearing and determination of the Complaint.

2. He also sought for orders to restraini the Respondents from evicting, letting or threatening, closing his premises, victimizing or in any way interfering with his quiet possession and enjoyment of the demised premises pending hearing of the application inter-partes.

3. In prayer 3, the tenant is seeking for a declaration that the one-day notice issued by the Respondents/agents is defective and illegal while in prayer 4, he seeks for an order to compel the Respondents to refund the amount used for renovation and general maintenance of the suit premises. Finally, he seeks that the OCS Bamburi Police Station does ensure compliance with the orders.

4. The tenant simultaneously filed a motion of even date seeking for the same orders. The application is supported by the tenant’s affidavit of even date to which is annexed a letter dated 1st October 2024 by the 1st Respondent notifying the tenant to vacate the reception area by 4th October 2024.

5. It is the tenant’s case that the 1st Respondent being the new agents of the demised premises sought to take over by force a space which he uses as a reception for his bed and breakfast accommodation business without following due process.

6. According to the tenant, Eden Beach Apartments is a premises owned by different individuals (landlords) for purposes of letting. The property had been left unattended to for a long period as a result of which it became dilapidated for lack of maintenance. The tenant approached individual landlords who agreed to let to him 14 units out of 30 units of the premises to run his current business.

7. Owing to the state of the premises, the tenant alleges that he was allowed by the former Chairman of Eden Beach Management to undertake renovations and general maintenance of amenities of the subject premises at a cost of Kshs 10. 6 million. The tenant was by the time of filing this suit yet to recover the said costs.

8. Interim orders were granted ex-parte on 7th October 2024 pending hearing inter-partes on 22nd October 2024.

9. The application is opposed through a replying affidavit sworn on 1st November 2024 by JOSEPH MARIE OGETO who is a director of the 1st Respondent. He deposes that this Tribunal has no jurisdiction to hear and determine the matter under the provisions of Cap 301, Laws of Kenya as there is no controlled tenancy in existence. As such, he deposes that the application is an abuse of court process.

10. The 1st Respondent deposes that it was contracted to manage, repair and maintain the common areas of Eden Beach Apartments wherein the tenant rented apartments from different landlords. According to the 1st Respondent, the tenant has not rented any such premises from either of the Respondents.

11. The 1st Respondent deposes that it has always maintained Eden beach Apartments at the very best standards and have never granted a license to the tenant to manage the common areas in the said development. As such, the 1st Respondent questions the tenant’s locus in making the application before this court and seeks for dismissal of the suit.

12. The application was directed to be canvassed by way of written submissions and both parties complied. The tenant’s submissions are dated 19th November 2024, while the 1st Respondent’s submissions are dated 3rd December 2024.

B. Issues for determination 13. The following issues arise for determination; -a.Whether this Tribunal has jurisdiction to hear and determine the instant suit.b.Who shall bear the costs of the suit?

Issue (a) Whether this Tribunal has jurisdiction to hear and determine the instant suit. 14. The tenant/applicant moved this Tribunal vide a reference dated 4th October 2024 pursuant to Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, seeking for restraining orders against the Respondents from interfering with its operation area i.e reception, offices, apartments, stores, its employees and clients pending hearing and determination of the Complaint.

15. He also sought for orders to restrain the Respondents from evicting, letting or threatening, closing his premises, victimizing or in any way interfering with his quiet possession and enjoyment of the demised premises pending hearing of the application inter-partes.

16. In prayer 3, the tenant is seeking for a declaration that the one-day notice issued by the Respondents/agents is defective and illegal while in prayer 4, he seeks for an order to compel the Respondents to refund the amount used for renovation and general maintenance of the premises. Finally, he seeks that the OCS Bamburi Police Station does ensure compliance with the orders.

17. The tenant simultaneously filed a motion of even date seeking for the same orders. The application is supported by the tenant’s affidavit of even date to which is annexed a letter dated 1st October 2024 by the 1st Respondent notifying the tenant to vacate the reception area by 4th October 2024.

18. It is the tenant’s case that the 1st Respondent being the new agents of the demised premises sought to take over by force a space which he uses as a reception for his bed and breakfast accommodation business without following due process.

19. According to the tenant, Eden Beach Apartments is a premises owned by different individuals (landlords) for purposes of letting. The property had been left unattended to for a long period as a result of which it became dilapidated for lack of maintenance. The tenant approached individual landlords who agreed to let to him 14 units out of 30 units of the premises to run his current business.

20. The application is opposed through a replying affidavit sworn on 1st November 2024 by JOSEPH MARIE OGETO who is a director of the 1st Respondent. He deposes that this Tribunal has no jurisdiction to hear and determine the matter under the provisions of Cap 301, Laws of Kenya as there is no controlled tenancy in existence. As such, he deposes that the application is an abuse of court process.

21. The 1st Respondent deposes that it was contracted to manage, repair and maintain the common areas of Eden Beach Apartments wherein the tenant rented apartments from different landlords. According to the 1st Respondent, the tenant has not rented any such premises from either of the Respondents.

22. The 1st Respondent deposes that it has always maintained Eden beach Apartments at the very best standards and have never granted a license to the tenant to manage the common areas in the said development. As such, the 1st Respondent questions the tenant’s locus in making the application before this court and seeks for dismissal of the suit.

23. The 1st Respondent in its submissions has cited the case of Republic Vs Chairperson, Business Premises Rent Tribunal at Nairobi & Another ex-parte Suraj Housing & Properties Limited & 2 others (2016) eKLR in which the Superior Court cited with approval the decision in Pritam Vs Ratilal & Another (1972) E.A 560 as follows: -“As stated in the Act itself, it is an Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. 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 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, 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”.

24. The 1st Respondent further cites the decision in Nandlal Shah & 2 others Vs Kingfisher Properties Limited (2015) eKLR wherein it was held as follows: -“In the absence of a Landlord/tenant relationship, the tribunal has no jurisdiction to entertain any dispute arising between the parties. in the circumstances thereof, I will down my tools.”

25. Based on the materials on record, it is clear that the tenant operates an Airbnb business in the apartments comprising the demised premises which are owned by other persons who are not parties to this suit. To that extent, the tenant’s case is a non-starter in absence of a landlord/tenant relationship between him and the parties herein. The suit is therefore a candidate for striking out for want of jurisdiction. The interim orders issued herein were consequently given without jurisdiction and are liable to discharge or setting aside.

26. We agree with the 1st Respondent that this Tribunal’s jurisdiction is limited to controlled tenancies over a shop, a hotel or a catering establishment as provided in section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya.

27. Even if there was a landlord/tenant relationship between the parties herein, it is trite law that premises used for Airbnb cannot fit the description of a controlled tenancy within the meaning and interpretation of Section 2 of Cap 301, Laws of Kenya as it is neither a shop, hotel nor catering establishment.

28. We are fortified in reaching the foregoing conclusion by the superior court’s decision in Kenya Commercial Bank Vs Jaribu Holdings Limited (2007) eKLR wherein Justice M. Warsame (as he then was) had the following to state at page 5: -“It is my decision that the leasing out of the suit premises as furnished apartments on short term basis i.e. one month or so by its nature does not make the relationship a controlled tenancy. In my understanding, the user of the suit premises as furnished apartment is not a controlled tenancy and cannot fall within the provisions of Cap 301 Laws of Kenya. I therefore make a finding and hold that the suit premises does not fall within the provisions and requirement of Cap 301 Laws of Kenya. I agree with the Advocate for the plaintiff that a furnished apartment is essentially a residential house like any other dwelling house and cannot be construed to be a hotel, hence the defendant is not within the realm and protection of Cap 301, Laws of Kenya.”

Issue (b) Who shall bear the costs of the suit? 29. Under Section 12(1)(k) of Cap 301, Laws of Kenya, costs of every suit before this Tribunal are in our discretion but always follow the event unless for good reasons otherwise ordered. We shall award costs of the reference to the Respondents.

C. Orders 30. In conclusion, the following final orders commend to us; -a.The tenant’s reference and application dated 4th October 2024 is hereby struck out for want of jurisdiction.b.The interim orders given on 7th October 2024 are hereby discharged forthwith.c.Costs of Kshs 30,000/= are awarded to the Respondents against the tenant.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF FEBRUARY 2025. HON GAKUHI CHEGE - PANEL CHAIRPERSONHON. JOYCE A. OSODO - PANEL MEMBERBUSINESS PREMISES RENT TRIBUNALIn the presence of: -Tenant present in personNo appearance for the Respondents