[2022] KEBPRT 843 (KLR)

Kithela v Salim (Tribunal Case E255 of 2022) [2022] KEBPRT 843 (KLR) (21 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 843 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E255 of 2022

Andrew Muma, Vice Chair

November 21, 2022

Between

Joshua Kithela

Tenant

and

Zulekha Salim

Landlord

Ruling

Parties and Representatives 1. The Applicant Joshua Kithela is the Tenant of a rented business space situate at Majengo-Pumwani. (hereinafter known as the Tenant)

2. The firm of M/S Tim Aswani represents the Tenant/ Applicant.

3. The Respondent Zulekha Salim is the Landlady of a rented business space situate at Majengo-Pumwani. (hereinafter known as the Landlord)

4. The firm of M/S Ali and Company represents the Landlord/ Respondent.

The Dispute Background 5. The Tenant filed a Reference to the Tribunal dated March 17, 2022 together with a Notice of Motion Application under certificate of urgency and supported by an affidavit of even date.

6. This Tribunal issued orders dated March 23, 2022 certifying the application as urgent, restraining the Landlord, her servants, employees, and/or agents from evicting, harassing the Tenant and or in any other manner interfering with his tenancy situated at Majengo-Pumwami pending the hearing of the application inter partes, directing the Tenant to continue paying Kshs 14,000 per month and directing the Tenant to serve documents filed.

7. In response, the Landlady filed a Notice of Preliminary Objection on May 16, 2022 and a Replying Affidavit sworn on the even date.

8. The Tenant filed a Supplementary Affidavit sworn on May 24, 2022.

9. This Tribunal issued further orders dated July 28, 2022 giving orders inter alia that the Rent Inspector visits the premises in the presence of all parties to make a determination whether the premise is a shop or residential.

10. An undated Inspection Report was filed and this Tribunal gave orders that the said report should be availed to both parties.

11. The Tenant filed his written submissions dated October 4, 2022 while the Landlady filed her written submissions dated September 23, 2022.

Jurisdiction 12. The Landlady contends that this Tribunal does not have jurisdiction on the basis that the premises are residential not commercial.

The Tenant’s Claim 13. The Tenant filed the reference at the Tribunal and Application dated March 17, 2002 seeking that the Respondent by themselves, servants, employees and/or agents be restrained from breaking into the suit premises, evicting, harassing the Tenant/ Applicant and or any other manner interfering with his tenancy at the suit premises situated at Majengo-Pumwani.

14. The Tenant also sought an order that the Tribunal declares the increase of rent form Kshs 14,000. 00 to Kshs 19,000. 00 be declared illegal.

15. He further sought that pending hearing and determination of the main the reference the Tribunal to restrain and/or estop the Landlady from interfering with the Tenant’s quiet possession of the premises and status quo be maintained pending hearing and determination of the suit.

16. The grounds of the Tenant’s application are that the Tenant has never received any notice on increase of rent over the suit premises, the Tenant has heavily invested in the said business which is his only source of livelihood and that he stands to suffer prejudice unless the orders sought are granted.

17. He also states that he was a controlled tenant as per Section 2 of CAP 301 since there was no written agreement other than a letter of offer

18. In his submissions dated October 4, 2022, the Tenant contends that Rent inspector arrived at the suit premises late in the day and took photographs of the premises without seeking information from those concerned. He also contends that the inspector did not take other factors into consideration. The Tenant tried to break down those factors in his submissions.

The Landlady’s Claim 19. The Landlady opposed the Tenant’s Application and filed a Notice of Preliminary Objection and a Replying Affidavit both dated May 16, 2022.

20. The grounds that there is no commercial Landlord-Tenant relationship between the Landlord and the Tenant. Therefore, the Tribunal has no jurisdiction to entertain the matter.

21. That, further, the relationship between the Applicant and the Respondent is that of Principal- Agent which can only be entertained in a civil suit. He also contends that he had received complaints from some of the other Tenants that the Applicant was short changing her on the total sum of rent she was collecting prompting her to make a complaint at the Chief’s Office.

22. The Landlady in the Notice of Preliminary objection therefore states that the Tenant’s Application is frivolous, vexatious and an abuse of the court’s process.

23. In her submissions dated September 23, 2022, the Landlady contends that as per the Inspection Report, it was concluded that the premises in dispute were being used as residential premises and therefore do not fall within the jurisdiction of the Tribunal.

24. The Landlady also referred to Annexure Z-2 that was annexed to the Respondent’s Replying Affidavit to prove that the Applicant was an appointed agent of the Landlord.

List of Issues for Determination 25. The issues raised for determination before this Tribunal are as follows;i.Whether the Tribunal has jurisdiction to determine this matter.G. Analysis and Findingsi.Whether the Tribunal has jurisdiction to determine this matter.

26. The main issue of consideration herein is whether the premises are commercial premises or residential premises. It from an answer to this question that guides the question of jurisdiction taking into account the fact the jurisdiction of this Tribunals is spelt out in the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

27. Part of the Tribunal’s jurisdiction specified in the provisions of Section 12 of the aforementioned Act is to determine whether or not any tenancy is a controlled tenancy.

28. Section 2 of the Act defines a controlled tenancy to be: a tenancy of a shop, hotel or catering establishment—awhich has not been reduced into writing; orbwhich has been reduced into writing and which—iis for a period not exceeding five years; oriicontains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; oriiirelates to premises of a class specified under subsection (2) of this section

29. Section 2 of the aforementioned Act further describes a shop as “premises occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or money’s worth.”

30. The question that then follows, do the premises in question fit the description of a shop?

31. In answering this question, I shall look into the evidence tendered by both parties and the Inspection Report filed by the Inspector and availed to both parties who have made submissions to that effect.

32. As for the Tenant, he alleges that the Inspector visited the premises late in the day and failed to put all factors into consideration. He even attempts to give an explanation to all the features of the premises described in the Inspector’s report and states that he sublet the premises to various traders who were paying rent to him. However, all those are mere assertions which are neither proven nor corroborated. The straw that the Applicant clings on is that there was an extension that he had created that house shops.

33. The Landlady on her part attempts to paint a picture of there being no Landlord-Tenant relationship between herself and the Applicant herein but does not give any explanation on the period preceding the said Agency Agreement considering the Tenant has been in the premises for a long time.

34. That notwithstanding in looking at the Inspector’s Report and the evidence on record, I find that the premises do not meet the description of a shop as per the provisions of Section 2 of the Act (cap 301). Neither do they qualify to be a hotel or a catering establishment as per the Act.

35. For the premises to qualify to a shop they have to be occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or money’s worth. That is not the case herein and the Applicant has not tendered any evidence to that effect.

36. Having made that finding, the hands of the Tribunal are tied since the Tenancy is not a controlled tenancy. It only follows that the jurisdiction of this Tribunal cannot be invoked further. After all: “Jurisdiction is everything.Without it a court has no power to make one more step.” Nyarangi J in Owners of Motor Vessel “Lillian S” vs Caltex Oil Kenya Ltd (1989)

Orders 37. Having made the analysis above. This Tribunal makes the following orders:i.This Tribunal lacks jurisdiction to hear and determine this dispute since the premises are not a controlled tenancy.ii.Each party to bear its own costs.

HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A. Muma this 21stday ofNovember 2022 in the presence of Mr. Aswani for the Tenant and N/A for Landlord.HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL