[2025] KEBPRT 210 (KLR)

Kenya Institute of Management v Munyaka & another (Tribunal Case E087 of 2022) [2025] KEBPRT 210 (KLR) (6 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 210 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E087 of 2022

CN Mugambi, Chair

March 6, 2025

Between

Kenya Institute of Management

Plaintiff

and

Hon. Dr. Victor Munyaka

1st Respondent

Okuku Agencies Auctioneers

2nd Respondent

Ruling

1. The Landlords notice of Preliminary Objection has been brought on the grounds;-a.That there is no Tenant-Landlord relationship between the Applicant and the Respondents as the Applicant has since moved out of the suit premises.b.That the orders the Applicant is seeking have already been overtaken by events and therefore they cannot be enforced.c.The suit premises has already been leased to another Tenant.

2. Both parties were ordered to file written submissions on the preliminary Objection and have done so.

The Landlord’s submissions 3. It is the Respondents submissions that the Applicant has not been in the suit premises as from 19. 12. 2022, and that the matter at the Tribunal was filed on 26. 1.2023, a month and seven days after the Tenants had been evicted from the premises for non-payment of rent.

4. It is submitted that the Landlord had served upon the Tenant a proclamation notice on 29. 11. 2022 for rent arrears amounting to Kshs. 11,000,000/=, the Tenant did not challenge the said proclamation notice until the goods were attached and removed by the 2nd Respondent on 19. 12. 2022.

5. The Landlord submits further that by the time the Tenant instituted the current Application in the Tribunal, it was aware that there was already another Tenant in the suit premises, an event the Tenant failed to disclose to the Tribunal and the Tribunal proceeded to issue orders due to material non-disclosure of the prevailing facts.

6. It is therefore submitted on behalf of the Tenant, that there was no subsisting controlled tenancy when the Tenant came to court and therefore the Tribunal had no jurisdiction in the matter.

The Tenant’s submissions 7. The Tenant has submitted that by dint of the lease agreement and rent paid, the Applicant is a Tenant of the 1st Respondent and has been one since 2018. The Tenant in this regard seeks to rely on the finding of the Magistrate’s court in case No. E001 of 2023 that there exists a Landlord/Tenant relationship between the parties.

8. The Tenant further submits that it was forcefully removed from the suit premises vide a notice of proclamation and attachment.

9. The Tenant therefore submits that the illegal eviction of a Tenant does not extinguish the existence of a Landlord/Tenant relationship.

Analysis and determination 10. It is common ground that the Tenant was removed from the suit premises on or about 19. 12. 2022. The Tenant was removed pursuant to a proclamation notice issued on 29. 11. 2022. It is therefore not disputed that by the time the Tenant came to court on 26. 1.2023, the HORSE had already bolted so to speak. It is further not disputed that there is a new Tenant in the premises. I therefore do not think there was a subsisting tenancy between parties on 26. 1.2023 when the Tenant filed the instant Application.

11. In the case of; Pritam vs Ratilal & Another [1972] EA 560, the court stated;“…As stated in the Landlord and Tenant (Shops, Hotels and Catering Establishments) 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 pre-requisite to the application of the Act and where such relationship does not exist or it has come or been brought to an end, the provisions of this 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.”

12. In the case of; Republic vs Chairman Business Premises Rent Tribunal, Audio Caran Ltd (Interested Party) ex-parte Thande Holdings Limited [2020] eKLR, the court stated;“The jurisdiction and power of the Tribunal established under Section 11 of the Act is set out under Section 6 and 12 as read together with Section 4 of the Act. In summary, the Tribunal exercises jurisdiction in relation to subsisting controlled tenancies…”

13. As observed in the preceding paragraph in this ruling, by the time the Tenant filed the instant suit, it had already been removed from the suit premises and a new Tenant installed therein. Clearly, there was no subsisting tenancy relationship between the parties at the time the suit was filed. In these circumstances and in the light of the cited authorities, the Tribunal has no jurisdiction to hear and determine this case.

14. Consequently, I do find merit in the Respondents notice of preliminary objection and allow the same with costs to the Respondent. The Reference filed herein and the Application are hereby struck out for want of jurisdiction with costs to the Respondent. For the avoidance of doubt, any orders still subsisting in this case are hereby discharged.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF MARCH, 2023HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Mathenge for the Tenant and Mr. Mulindi for the Landlord