[2025] KEBPRT 212 (KLR)

Kibunja & 12 others v Apex Micro Power Limited & another (Tribunal Case E1126 of 2024) [2025] KEBPRT 212 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 212 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1126 of 2024

N Wahome, Chair & Joyce Murigi, Member

January 30, 2025

Between

Isaac Kibunja

1st Tenant

Ken Mugendi

2nd Tenant

Teresia Kibe

3rd Tenant

Leah Kinyanjui

4th Tenant

Peter M.Njuna

5th Tenant

Emily Kagochi

6th Tenant

Khalid Makame

7th Tenant

Dennis Njoroge

8th Tenant

Edith Muriithi

9th Tenant

Vyonah Tanui

10th Tenant

Winnie Muiru

11th Tenant

Grantone Mchana

12th Tenant

Alice Wachira

13th Tenant

and

Apex Micro Power Limited

Landlord

and

Moran Auctioneers

Auctioneer

Ruling

1. This Ruling is on the Tenant/Applicant’s notice of motion Application dated 17. 10. 2024. The same is anchored on the Reference of the even date. The gist of the prayers in the Application are;i.To restrain the Landlord from distressing the Applicants either by itself or anyone else claiming under it or in its names and in particular the 2nd Respondent.ii.An order compelling the Landlord to allow the Tenants quiet possession of their respective premises.iii.An order allowing the Tenants to continue paying the rent agreed in their respective tenancy agreements.

2. The Tenants in concluding their pleadings filed the submissions dated 29. 11. 2024. On their part, the Respondents filed the Replying affidavit by Victoria Lango sworn on the 19. 11. 2024, the Authority to Act, Grounds of Opposition and list of documents of the same date. Finally, the Respondents filed the submissions dated the 2. 12. 2024.

3. We have perused all the parties pleadings and we are of the view that this case turns on the Tenancy/lease agreement dated the 1st day of March 2024, between the 1st Applicant and the 1st Respondent. A determination on the relationship created by the parties by the said agreement will dictate whether this court has the wherewithal to superintend over the matters in issue.

4. It is important at this point to observe that, the 2nd to the 13th Applicants also operate on lease agreements founded on similar terms with that dated 1. 3.2024 between the 1st Applicant and the 1st Respondent. Therefore, a decision on the Applicant’s lease agreement held by the 1st Applicant shall impact on all the other leases run by the rest of the Applicants.

5. We have keenly perused annexure “IKK1” by the Applicants but are unable to find a break or drop clause intervening on the term of the Tenancy between the parties. Clause 2. 2 of the lease agreement provides that;-“The lease will be for a period of five (5) years and three (3) months renewable with effect from 1st March 2024 for stall No. …..”

6. It then follows that the parties herein are not governed by Section 2(1) of the Landlord & Tenant (shops, Hotels and Catering Establishments) Act (Cap 301) hereinafter referred to as “the Act”. It is that Section of the Law that creates jurisdiction for this Tribunal. It defines a Controlled Tenancy as follows;-“Controlled Tenancy means a tenancy of a shop, hotel or catering establishment-a.Which has not been reduced into writing; orb.Which has been reduced into writing and which-i.Is for a period not exceeding five (5) years; orii.Contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or …”

7. When an issue of jurisdiction is raised either by pleadings or by implication from the parties respective dispositions, it is then incumbent upon the court to hear the issue and make a determination on priority. In the locus case of; Mukisa Biscuits Manufacturing Company Ltd v Westend Distributors [1969] EA, the court made the following holding;-“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit.”

8. In the same case of; Mukisa Biscuit supra, Sir Charles Newbold further held that;-“A Preliminary objection consists of a point of law which has been pleaded or which arises by implication out of the pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea for limitation or a submission that the parties are bound by the contract to the suit to refer the dispute to arbitration.”

9. Justice C.B. Madam J in the case of; Putom v Tatilal & Another [1972] EA espoused the requirement of the existence of a controlled tenancy for the jurisdiction to suffice. He held thus;-“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.”

10. In this case, the parties made a conscious choice to be governed by other legal regime other than the Act herein. That is when they decided to have the term of their relationship run for more than five (5) years and without a break clause. The duty of this court is to decide the matter by evaluating the parties terms of engagement.

11. In the case of; Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR the court of Appeal held that;-“We are alive to the hallowed legal maxim that it is not the business of the courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.”

12. The parties having ousted the jurisdiction of this court to preside over this matter, the law dictates that we down our tools and take no more steps in this matter. This position is fortified by the holding in the celebrated case of; the Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where the court held that;-“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the materials before it. 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

13. We would therefore make a determination that from the uncontested pleadings and materials placed before us which is also tampered by the Applicable statute and precedents, we do not have the wherewithal to superintend over the matters at hand. Consequently, we strike out the Applicants Reference and Notice of Motion Application both dated 17. 10. 2024 with costs.

14. In the final analysis, we make the following orders;-a.That the Reference and Notice of Motion Application both dated 17. 10. 2024 are struck out for want of jurisdiction.b.The Applicants shall pay costs to the Respondents assessed at Kshs. 30,000/=.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. NDEGWA WAHOME, MBS - PANEL CHAIRPERSONHON. JOYCE MURIGI - MEMBERBUSINESS PREMISES RENT TRIBUNAL.Delivered in the presence of M/S Mugala for the Respondents and in the absence of M/S MMbifwa for the Applicants