[2021] KEBPRT 631 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 977 OF 2019 (NAIROBI)

LAZINOS HOTEL & RESTRAURANT................................TENANT/APPLICANT

VERSUS

TURITU SERVICE STATION LTD.....................LANDLORD/1ST RESPONDENT

HOUSING FINANCE COMPANY OF KENYA LTD...............2ND RESPONDENT

RULING

The 2nd Respondent has filed a preliminary objection dated 30th January 2020 on the following grounds;

a. That the orders issued by this honourable Tribunal on 4th October 2019 pursuant to the Tenant’s/Applicant’s application dated 4th October 2019 were unlawful.

b.That this honourable Tribunal has no jurisdiction to issue these orders or hear this application. The Tenant/Applicant is not a protected Tenant within the confines of the law, reference is made to section 2 of the Landlord’s and Tenant’s (Shops, Hotels and Catering Establishments) Act Cap 300.

c. The application is inherently bad in law.

The thrust of the 2nd Respondent’s preliminary objection is the challenge to the jurisdiction of this Tribunal to hear and determine this reference premised on the alleged fact that the Tenant is not a protected Tenant as envisaged under section 2 of Cap 300. I will determine this limb of the objection first as my finding thereon will determine the other objections raised by the 2nd Respondent.

The Tenant’s reference is the one dated 4th October 2019 and it concerns the Landlord;

“He illegally and unlawfully invaded the Tenant’s premises. The Landlord has also blocked and locked out the Tenant from the premises.”

During the invasion, the Tenant’s perishable goods, were unlawfully and illegally carried by the Landlord.

The Tenant’s application dated 4th October 2019 was on the same day allowed in terms of prayers 1, 2, 3, 4 and 10 thereof. It is the granting of these prayers that forms the basis of the objection by the Respondent that the said orders were unlawfully issued.

The Respondent’s submissions in support of the preliminary objection have been filed and at the time of writing this ruling, the Tenant/Applicant’s submissions had not been filed, the Tenant having been ordered to file the same on 10th February 2021. I therefore do not have the benefit of the Tenant’s submissions in response to the preliminary objection and submissions filed by the 2nd Respondent.

The 2nd Respondent’s submissions may be summarized as follows;

1. That the 2nd Respondent purchased the suit property at a public auction on 30th August 2019. The property previously belonged to the 1st Respondent.

2. That the sale of the property by public auction was mutually agreed upon by the 1st and 2nd Respondent.

3. That this Tribunal has no jurisdiction to determine the dispute arising between the Applicant and the 2nd Respondent as to issue injunctive orders or to investigate any complaint by the Tenant about forcible possession of the premises by the Landlord.

4. That the Applicant has not adduced any evidence to prove that there exists a tenancy relationship between it and the 2nd Respondent.

5. That the Applicant has not demonstrated that it remits any rent to the 2nd Respondent.

6. That the Applicant has not annexed any registered lease between itself and the 2nd Respondent.

7. That in these circumstances therefore, there is no demonstrated Landlord/Tenant relationship between the Applicant and the 2nd Respondent and therefore this Tribunal has no jurisdiction to entertain this dispute.

8. That it is established that this Tribunal lacks jurisdiction to issue injunctive orders. In support of this submission, the 2nd Respondent has cited the cases of Narshidas & Company Ltd Vs Nyali Air Conditioning and Refrigeration Services Ltd and R –VS- The BPRT & Another ex-parte Davies Motor Corporation Limited.

9. That under paragraph 12(e) of Cap 301and on the authority of Re Hebtulla Properties Ltd (1979) eKLR, the powers/of the Tribunal) include paragraph (e) the power to make an order for the recovery of possession from a Tenant, or indeed from any person in occupation. Such an order would be an order made on the application of the Landlord. no corresponding power is given to make an order on the application of a Tenant who has been forcible dispossessed by a Landlord.

10. That the recovery of possession must have meant and means recovery of possession by and not from the Landlord.

11. That Parliament never intended that the Tribunal should have power to order recovery of possession by the Tenant where such possession has been seized by a Landlord and it never gave that power to the Tribunal;

12. ‘That forcible taking of possession” is not a matter within the area of jurisdiction of the Tribunal and that being the case, the Tribunal cannot investigate a complaint about forcible possession of premises by a Landlord.

The determination of the preliminary objection as of necessity requires a brief statement of the facts/cases of the parties. The Applicant’s supporting affidavit sworn on 4th October 2019may be summarized as follows;

1. That the Applicant is a Tenant of the 1st Respondent.

2. That there has been CMCC Milimani Case No 5973/2019 wherein one Winfred Opondo obtained orders restraining the Respondents herein from selling the suit premises.

3. That by a letter dated 23rd September 2019, the 2nd Respondent informed the 1st Respondent that it had successfully purchased the suit property on 30th August 2019 in a public auction.

4. That on 23rd September 2019, the Applicant was forced out of the business premises by the 2nd Respondent.

5. That the other Tenants in the premises have not been forced out.

6. That there was no court order issued to remove the Applicant from the suit premises.

7. That the Tenant, a three-star hotel continues to loose business as a result of the 2nd Respondent’s actions.

The 2nd Respondent’s replying affidavit may be summarized as follows;

1. That the deponent of the Applicant’s affidavit lacks authority to swear the said affidavit.

2. That the 1st Respondent took a loan from the 2nd Respondent which the 1st Respondent was unable to pay as a result of which following a consent recorded in HCCC No 342 of 2018, the 2nd Respondent ended up purchasing the suit property in a public auction conducted on 30th August 2019.

3. That the 2nd Respondent cannot verify the claims of the Applicant at paragraph 2 of the Applicant’s affidavit.

4. That the suit as regards the suit property was concluded by the consent order between the Respondents.

5. That the Tenant is still at the suit premises contrary to his averments at paragraph 6 of its affidavit. The 2nd Respondent has not moved or forced out the Tenant/Applicant from the suit premises.

6. That the 2nd Respondent is the Landlord.

7. That the Tenant/Applicant will not suffer any loss as it is still on operation at the suit premises.

What is the nature of the relationship between the Applicant and the 2nd Respondent?

1. The Applicant has stated that it is/was at all material times the Tenant of the 1st Respondent.

2. The Applicant has further stated that it was illegally removed from the suit premises by the 2nd Respondent.

3. The 2nd Respondent has alleged that it purchased the suit property in a public auction following a consent recorded in HCCC No 342 of 2010 on 13th August 2010.

4. The 2nd Respondent has contended that the Applicant is still in the suit premises and no evidence to the contrary has been tendered by the Applicant.

5. The 2nd Respondent at paragraph 16 of its affidavit confirms that it is the Landlord of the suit premises.

6. From the foregoing, it is clear that as at the time the 2nd Respondent alleges to have purchased the suit premises, the Applicant was in occupation and carrying out business. The 2nd Respondent while not denying this situation only contends that there does not exist a Tenant/Landlord relationship between the parties as the Tenant has not adduced any evidence to prove the existence of any such relationship. The Tenant/Applicant has not annexed any registered lease between itself and the 2nd Respondent, the Tenant has further not demonstrated that it has remitted any rent to the 2nd Respondent.

7. The Applicant has not challenged the proprietary rights of the 2nd Respondent over the suit property. On the other hand, the 2nd Respondent admits that the Applicant is still in occupation of the suit premises but is not its Tenant neither does it pay rent.

8. The question that would have to be determined then is whether after the 2nd Respondent purchased, the suit property, the Applicant’s status remained as that of a Tenant or that of an illegal occupier of the premises.

9. The issues raised by the 2nd Respondent in the preliminary objection in my view cannot be determined at this stage without calling evidence or considering evidence raised in the respective affidavits. This can only be determined upon full hearing of the Tenant’s application. I say this because it has been admitted that the Tenant/Applicant is in occupation of the premises.

It has not been suggested that he entered into the premises illegally. It is also clear that the relationship between the Applicant and the 2nd Respondent (if any) has not been reduced into writing. The allegation by the 2nd Respondent that the Tenant has not remitted any rent to it and has further failed to annex any registered lease, are all matters of evidence which I cannot determine by way of preliminary objection. A determination of these issues at this stage would be an invitation to consider the evidence tendered by way of affidavits by the parties.

10. In the case of David Karobia Kiiru Vs Charles Nderitu Gitoi & another [2018] Eklr, Justice Odungo at paragraph 12 of his ruling observed as follows;

“For a preliminary objection to succeed, the following tests ought to be satisfied. Firstly, it should raise a point of law, secondly, it is argued on the assumption that all the facts pleaded by the other side are correct and finally it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful dispose of the suit.”

I am guided by the observations of the learned judge set out above and therefore do find that the issues raised by the preliminary objection, namely, the nature of the relationship between the Applicant and the 2nd Respondent, the existence of a valid registered lease or lack thereof, the payment of rent by the Tenant/Applicant and/or the lack thereof, the circumstances under which the Tenant/Applicant came into possession and continues to occupy the suit premises, “Are all facts/issues that have to be ascertained”.

11. I further find that whether or not the Tribunal has jurisdiction to issue injunctive orders is a matter to be determined in that context of the application and the affidavits. I further find at this stage that whether or not the Tribunal has power to investigate any complaint by the Tenant/Applicant about forcible possession of premises by a Landlord to be an issue I ought to consider during the hearing of the Tenant’s application. I say this in view of the fact that the Landlord/2nd Respondent has already categorically admitted that it has never evicted the Applicant and that the Applicant is in occupation of the suit premises.

12. In the circumstances, I find no merit in the preliminary objection raised by the 2nd Respondent and I dismiss the same.

In view of the age of this matter and the serious issues raised by both the Applicant and the Respondent, I order that the application dated 4th October, 2019 be fixed for hearing on a priority basis.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

RULING DELIVERED IN VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 19TH DAY OF APRIL, 2021 IN THE PRESENCE OF MISS MUTAI FOR THE 3RD RESPONDENT. NO APPEARANCE FOR THE TENANT.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL