[2024] KEBPRT 180 (KLR)

Kimani & another v Reliques Africa Limited & another (Tribunal Case E062 of 2023) [2024] KEBPRT 180 (KLR) (28 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 180 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E062 of 2023

N Wahome, Member

February 28, 2024

Between

Edith Wanjiku Kimani

1st Applicant

Haron Halonyere

2nd Applicant

and

Reliques Africa Limited

1st Respondent

Martha Kemunto Nyakamba

2nd Respondent

Ruling

Parties and Representatives 1. Through the firm of Wambugu Law, the Applicants filed the Reference dated 6/4/2023. The same was accompanied by a motion of a similar date and brought under certificate of urgency.

2. The Reliefs sought in both the reference and the notice of motion were the same. They are:-i.Spentii.That this Honourable court do issue an order compelling the Respondents to unlock the Business Premises referred to as Sebulani Restaurant on property Reference No. Njoro/Ngata/137 at Olive-Inn Kiamwayi and remove their goods, machinery and work equipment stored therein.iii.That in the alternative to prayer (ii), the Honourable court does issue an order allowing the Applicants to break into the business premises referred to as Sebuleni Restaurant on property reference No. Njoro/Ngata 1/37 at Olice-Inn Kiamwayi and remove their goods, machinery and work equipment stored therein.iv.That the Honourable court does issue on order compelling the 1st Respondent to reimburse to the Applicants the sum of Kshs. 125,000/= paid during execution of the sublease agreement.v.That the incharge Kiamwanyi police station to enforce compliance with the court orders, should the need arise in order to ensure that peace prevails.vi.That this matter be set down for hearing on a priority basis and issued with the earliest hearing date available.vii.That costs of the application be borne by the Respondent.

3. The 1st Respondent on his part was represented by M/S M. Waititu & Company Advocates. It filed its notice of appointment of Advocates and replying affidavit both dated 16. 5.2023. Later on the 4. 9.2023 it filed its written submissions in response to the directions of the court made on the 16. 5.2023.

4. The 2nd Respondent/Landlord was represented by M/S Mangeri & Company Advocates and a notice of appointment of Advocate and replying affidavit both dated 22. 5.2023 were filed in court simultaneously.

The dispute and background 5. The 1st Respondent, then as a Tenant entered into a lease agreement dated 24. 12. 2019 and which was to expire on the 31. 1.2025. The same was annexed by the 2nd Respondent in the affidavit as Annexture “MKN II.”

6. That thereafter, the Applicants agreed to rent the same property from the 1st Respondent both with the authority of the 2nd Respondent. An agreement to that effect dated 4. 12. 2022 was reduced into writing. The same is annexed in the 2nd Respondent’s affidavit as Annexture “MKN2. ” The term of this particular tenancy was to last between the 1st of January 2023 to 31st December 2026.

7. By this agreement, the 1st Respondent gave ……………to the Applicants who established a relationship of Tenant/Landlord with the 2nd Respondent to whom they were to pay the rents and profits of the premises payable into the terms of the tenancy.

8. The Applicants to secure the demised premises herein from the 1st Respondent, they were to pay him a consideration of Kshs. 1,200,000/= and further monthly rents of Kshs. 50,000/= to the 2nd Respondent.

9. That from the record, it appears that the Applicants never took up control and possession of the demised premises otherwise known as Njoro/Ngata 1/37 at Olive-Inn Kaimunyi but merely posted what they referred to as “goods, machinery and work equipment” into the demised premises.

10. The Applicants only paid Kshs. 125,000/= out of the Kshs. 1,200,000/= that they were to pay the 1st Respondent and Kshs. 27,000/= out of the Kshs. 150,000/= payable to the 2nd Respondent being rents for the months of January, February and March 2023. Kshs. 123,000/= was not paid.

11. That as a result of the non-payment of the money due to the 1st Respondent at Kshs. 1,075,000 /= and Kshs. 123,000/= to the 2nd Respondent, the relationship between the parties became strained and deep hostility emerged from the email marked “MKN 3&4” in the affidavit of the 2nd Respondent.

12. By the 15th March, 2023, the Applicants had shown clear intention of terminating the Tenancy between them and the 2nd Respondent though without regard to the provisions of Section 4 and 6 of Cap 301.

Jurisdiction 13. The jurisdiction of this Tribunal is in dispute. The 1st Respondent in its submissions dated the 4. 9.2023 raised the issue of jurisdiction. The 1st Respondent cited the case of; Motor Vessel M.V. Lillians vs Caltex Oil (Kenya) Limited (1989) LLR 1653 at page 10 where the court stated that:-“Jurisdiction must be acquired before judgment. It is this reason that a question of jurisdiction once raised by a party of by a court on its own motion must be decided forthwith on evidence before the court. It is immaterial whether the evidence is scanty, or limited… the moment the court determines that it has no jurisdiction has to down its tools and proceed no further.”

14. The court was also referred to the case of; Phoenix E.A. Assurance Co. Ltd vs S.M. Thiga t/a Newspaper Service [2019] eKLR where it was held that:-“if a court therefore proceeds to hear a dispute without jurisdiction, then the suit will be a nullity ab initio and any determination made by such court will be amenable to being set aside et desito justiae.”

15. Further reference was made to the case of; Republic vs Chairperson Business Premises Tribunal at Nairobi & Another ex parte Suraj Housing & Properties Ltd and 2 others [2016] eKLR whereby the court cited with approval the case of; Pritam vs Ratilal & Another Nairobi HCCC No. 1499 of 1970 [1972] EA 560 where the court stated that;-“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.”

16. In a decision of this Tribunal in the case of; Patrick Nyamweya Simba vs Jerusha Auma Ogwari [2022] eKLR, it was held that;-“It is clear from the affidavit of the Respondent that the Tenant has already left the premises. The Tenant has carried away his belongings in the suit premises and the only items that the Respondent is holding on to are the doors (or door) belonging to the customer of the Applicant. There no longer exists a landlord/tenant relationship between the parties herein. In the circumstances, the Tribunal lacks the requisite jurisdiction to hear and determine the dispute.”

Issues for determination 17. .....a.Whether this Tribunal has jurisdiction to preside over the dispute herein.b.Whether the Tribunal may grant the prayers in the notice of motion dated 6. 4.2023

Analysis and findings Whether the Tribunal has jurisdiction to preside over the dispute herein. 18. ....

19. The jurisdiction of this Tribunal is to be found in the landlord and Tenant (shops, hotels and catering establishments) Act Chapter 301 Laws of Kenya. Primarily there must be controlled tenancy as defined under Section 2.

20. In this matter, the Applicants themselves …….. the landlord/tenant relationship with the 2nd Respondent. This is apparent from their own affidavit and that of the 2nd Respondent when read together with the annexures therein.

21. That the Applicants are not in anyway claiming any rights with the Act as Tenants but as persons who feel that their rights have been breached.

22. Indeed in their prayers in both the reference and notice of motion dated 6. 4.2023, the Applicants are not seeking for any reliefs known to law as Tenants but merely seeking for release of purported goods locked up in the premises otherwise known as Njoro/Ngata 1/37 without seeking for any rights as Tenants.

23. That from the evidence of the 1st Respondent, the Applicants carted away the goods initially deposited in the demised premises. He claims to have reported the incident at Kiamunyi police patrol base and email correspondences between himself and the 1st Applicant which remains uncontroverted.

24. The landlord on her part has in response to the Applicant’s claim admitted to being paid Kshs. 27,000/= form sale of some of the Applicant’s goods. She however complains that the Applicants have never paid Kshs. 123,000/= to her which was the balance of rent for the months of January, February and March 2023 before they left the demised premises.

25. That the Respondents have through annexure “MKN6” annexed to the affidavit of the 2nd Respondent shows that they re-established the landlord/tenant relationship after the Applicants quit/vacated the demised premises.

26. From the case laws quoted and the facts of this case, it is clear that there does not exist any Tenancy relationship between the Applicants and either of the Respondents in this matter.

27. That indeed the claim by the Applicants is not for the attention nor disposal of this forum as the relevant statute governing this court has not conferred or clothed it with jurisdiction to deal with claims such as the one by the claimants.

28. As stated in the case of; Re-Hebtulla Properties Limited (supra);“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.”

29. From the foregoing, it is my determination that this Tribunal has no jurisdiction to hear and dispose of the dispute. The dispute herein belongs to another jurisdiction.

30. It therefore follows that the prayers in both the reference and notice of motion dated 6. 4.2023 cannot also find attention before this Tribunal.

Final disposal and orders 31. The orders that therefore commend themselves to this court when looking at the totality of all the issues at hand are the following;-a.That the Reference and the notice of motion dated 6. 4.2023 are hereby dismissed in their entirety for want of jurisdiction.b.That each party shall bear its own costs of the Reference and the application.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28THDAY OF SEPTEMBER 2023HON. NDEGWA WAHOME (MBS) - MEMBERBUSINESS PREMISES RENT TRIBUNALIn the presence of; Mr. Waiganjo for the 1st RespondentNo appearance for the ApplicantNo appearance for the 2nd Respondent