[2021] KEBPRT 147 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 109 OF 2021 (NAIROBI)

KENYA CO. REGISTRATIONS …………………….…….....…APLICANT/TENANT

-VERSUS-

CKA REALTORS LIMITED …………………….…LANDLADY/1ST RESPONDENT

HEBROS AUCTIONEERS…….……………… AUCTIONEERS/2ND RESPONDENT

RULING

Parties and Their Representative

1. The Applicantis KENYA CO. REGISTRATIONS(hereinafter referred to as the “Applicant”) through George Omwansa.

2. The Firm of Okenyo Omwansa & Co. Advocates represent the Applicant.

(Email Address: okenyoomwansaadvocates@gmail.com)

3. The 1st Respondents is CKA Realtors Limited (hereinafter referred to as the “Landlady/ 1st Respondent”).

4. The Firm of Chege Kariuki & Associates represent the Landlady/ 1st Respondent.

(Email Address: info@cka.co.ke)

5. The 2nd Respondent is Hebros Auctioneer (hereinafter referred to as the 2nd Respondent”). (Did not enter appearance).

The Background of the Dispute

6. The Applicant filed an Application dated 3rd February 2021 under Certificate of Urgency seeking the following orders;

I. That the Application be certified urgent and service of the same be dispensed with in the first instance.

II. That the Respondent be temporarily prohibited and restrained from unlawfully locking, restraining access and/or evicting the Tenant pending the hearing and determination of the Application

III. That the Respondent be temporarily prohibited and restrained from unlawfully interfering with the Tenant’s use and occupation of the premises pending the hearing and determination of the Application

IV. Costs of the Application be provided for.

7. On 3rd February 2021, the Tribunal issued an Order allowing prayers II and III of the Application and ordered the Applicant to serve the Application to the Respondents and the matter to come up for hearing on 25th February, 2021.

Summary Of Proceedings

8. On 5th February 2021, the Applicant filed another Application dated 4th February 2021 seeking Orders that the Respondent be compelled to unconditionally release Motor Vehicle Registration No. KBS 229U Model: Nissan X-Trail henceforth pending hearing and determination of the Application. On 8th February, 2021 The Tribunal ordered that the Application be served upon the Respondent for inter-partes hearing on 25th February 2021.

9. On 12th February 2021,the Applicant filed a third Application dated 11th February 2021 seeking Orders which the Tribunal ordered that:

i. The Respondent by themselves, servants or their Agents be prohibited and restrained from unlawfully offering for sale motor vehicle registration KBS 229U Nissan X-Trail compelled to unconditionally release Motor Vehicle Registration No. KBS 229U Model: Nissan X-Trail henceforth pending hearing and determination of the Application; and

ii.The Respondent by themselves, servants or their Agents be prohibited and restrained from unlawfully offering for sale motor vehicle registration KBS 229U Nissan X-Trail compelled to unconditionally release Motor Vehicle Registration No. KBS 229U Model: Nissan X-Trail henceforth pending hearing and determination

10. On 25th February 2021, all the three Applications were heard. The 1st Respondent undertook not to sell the Motor Vehicle before the Tribunal issues its orders. The 1st Respondent was issued seven days to file its response. The Applicant to file Further Affidavit if any within seven days of service. The Tribunal directed that both Applications would be heard on 26th March 2021.

11. On 26th April 2021, the Applicant informed the Tribunal that it appeared that the Motor Vehicle had been sold in spite of 1st Respondent’s undertaking in the Tribunal to present the Motor Vehicle as and when necessary. The 1st Respondent’s Counsel confirmed the same and asked the Applicant to deposit the rent arrears of Ksh. 216,000. 00. The Tribunal directed that Parties had leave to file further Affidavits in light of the new developments.

12. On 24th May 2021, the 1st Respondent was allowed to file further response and submissions in 7 days. The Tribunal directed that the matter shall be canvassed by way of submissions.

13. On 6th July 2021, the Tribunal ordered the Applicant to serve submissions in support of the Reference and both Applications in 7 days and the 1st Respondent to respond in 7 days after service.

14. On 28th September 2021, Parties confirmed compliance with filing of submissions. The ruling date was set on 2nd November 2021.

Applicant’s Submissions

15. The Applicant mainly submitted on two issues;

First was whether or not the purported sale of motor vehicle registration No. KBS 229 U Model Nissan X-Trail was procedural and/or unlawful. On this issue, the Applicant relied on various provisions of the Auctioneers Act and Auctioneers rules, 1997 to submit that the sale of the said Motor vehicle was unlawful.

The second issue is whether the Professional undertaking by the Landlady’s Advocate was binding. The Applicant submitted that the undertaking taken by the 1st Respondent’s Advocate was binding.

1st Respondents’ Submissions

16. The 1st Respondent submitted on two major issues as follows;

Whether there is a tenancy relationship between the Applicant and the 1st Respondent. The 1st Respondent submitted that there was no tenancy relationship. That the Tenant occupying the premises is Okenyo Omwansa & Co. Advocates and not the Applicant herein. As such the 1st Respondent submitted that this Honourable Tribunal does not have jurisdiction to hear and determine on the matter.

The second issue submitted by the 1st Respondent is whether the Applicant has satisfied the conditions for warrant grant of an injunction. The 1st Respondent submitted that the Applicant failed to meet all the conditions.

The third issue is whether the Professional undertaking issued by the 1st Respondent’s Counsel was also binding to the 2nd Respondent. The 1st Respondent submitted that the undertaking was not binding to the 2nd Respondent and therefore the 2nd Respondent shall be held liable for its actions.

Issues for Determination

17. I have carefully considered submissions by both parties and proceedings in this matter and identified the following issues for determination;

I. Whether this Tribunal has Jurisdiction to hear and determine on the matter;

II. Whether the Applicant has satisfied the conditions for warrant grant of an injunction; and

III. Whether the sale of motor vehicle registration No. KBS 229 U Model Nissan X-Trail was procedural and/or unlawful

Analysis and Determination

I. Whether this Tribunal has Jurisdiction to hear and determine on the matter

18. It is now trite that issues touching on the jurisdiction of any Court of law or Tribunal to determine any matter before it are fundamental issues of law and may be raised at any stage of the proceedings. Once a party challenges jurisdiction of this Tribunal, a determination thereon should be made before the Tribunal can proceed further with the final disposal of any matter before it. Also that where want of jurisdiction is demonstrated not to exist, the Tribunal has no option but to down its tools and proceed no further.

19. The 1st Respondent challenged the jurisdiction of this Tribunal to hear and determine on this matter on the ground that there was no Tenancy relationship between the Applicant and the 1st Respondent. The Applicant in its submissions did not address the question of jurisdiction, it therefore behooves this Tribunal to make its findings and determinations. The jurisdiction of BPRT Tribunal was aptly discussed in the case of Republic vs Business Premises Rent Tribunal & Another Ex- Parte Albert Kigera Karume [2015] eKLR which cited with approval the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195where the Court dealt with the provisions of section 12 of Cap 301 and stated 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…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”.

20. For me to make a conclusive finding on this issue, I have reevaluated how this case was brought before this Tribunal. The Applicant approached this Tribunal through a Reference and Application dated 3rd February 2021 seeking injunctive orders to stop eviction and be restrained from unlawfully interfering with the Applicant’s use and occupation of the premises pending the hearing and determination of the Application. The Application was made after the Applicant had been issued with a Proclamation Notice dated 4th December 2020, served to the Applicant on 19th January 2021. All the subsequent Applications do not raise any issues relating to eviction or tenancy Agreement but to the said Proclamation Notice on the sale of motor vehicle registration No. KBS 229 U Model Nissan X-Trail.

21. I have carefully analyzed the Parties’ submissions and all documents filed in this Tribunal. It is apparent that there is no evidence showing a Tenancy agreement. The issue of Tenancy Agreement was only submitted on by the 1st Respondent who stated that the Applicant, Kenya Co. Registrations is unknown to the 1st Respondent since it is not the Tenant, further, the 1st Respondent submitted that the Applicant’s Counsel, George Omwansa is the proprietor of Okenyo Omwansa & Co. Advocates, who is the current Tenant of the said premises and currently has arrears amounting to Ksh. 216,000. 00/=the issue of arrears was not submitted on any further and I cannot rule on it. Although the Applicant sought injunctive orders to stop eviction from the premises, the Applicant conveniently failed to submit on the same. It leaves me to wonder whether there was any intended eviction from the premises. In the same breadth, the Applicant sought orders to stop eviction but did not adduce the eviction notice to enable this Tribunal to make a conclusive finding.

22. It is my finding that the Applicant has not shown existence of a Tenancy agreement to warrant this Tribunal the jurisdiction to hear the matter. The issues of the sale of the motor vehicle has not been related in anyway with existence of a Tenancy Agreement, and therefore I cannot tell the circumstances that led to the Proclamation Notice dated 4th December 2020 and sale of the said motor vehicle.

23. 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 vs. 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.”

24. I am further guided by the finding in the case of David Cullen v Samuel Kiptalai & 2 others [2021] eKLR where the Judge stated as follows:

“On the issue of jurisdiction, it should be noted that a court or a Tribunal cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law or legislation. The jurisdiction of a court or Tribunal is not a mere technicality but that which goes to the root or heart of the matter.”

25. This Tribunal derives its jurisdiction from the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, 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. Having established that parties have not adduced evidence to show existence of a Tenancy Agreement which is a contested issue, then I have no option but to down my tools as it was stated in the case of Owners of the Motor Vessel “Lillian ”(S) versus Caltex Oil (Kenya) Ltd [1989] KLR1,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.

26. With the above analysis on jurisdiction, it is my finding that this Tribunal is not clothed with jurisdiction to hear matters where a Tenancy relationship between parties has not been proven to exist. Consequently, the Tribunal cannot proceed to hear issues emanating from a Proclamation Notice whose basis is not sufficiently given or linked to a Tenancy relationship. As a matter of fact, both the said proclamation notice dated 4th December 2020 and the Notification of sale of movable property dated 4th February 2021 indicate the name of the Debtor as Okenyo Omwansa & Co. Advocates and not the Applicant herein. In view of the above findings and considerations, I hereby make the following orders.

i. The Applicant’s Reference and Notice of Motion Applications dated 3rd February 2021, 4th February 2021, 11th February 2021 are hereby dismissed.

ii. Owing to the circumstances of the case, each party shall bear its costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon P. May this 2ndday ofNovember, 2021 in the absence of the parties.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL