[2022] KEBPRT 69 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 810 OF 2020 (NAIROBI)

LUCY WANJIKU KINYANJUI......TENANT/APPLICANT

VERSUS

WILSON NGUYO..................LANDLORD/RESPONDENT

RULING

1. The Respondent’s submissions in this matter have taken issue with the jurisdiction of the Tribunal to hear and determine this matter. It is the Respondent’s view that this Tribunal has no jurisdiction to hear and determine this matter as there does not exist a Landlord and Tenant relationship between the parties herein. I am therefore obliged to determine this issue before I proceed to make any further pronouncements in this matter.

2. From the affidavit of the Tenant sworn on 21st September 2020, the lease agreement between the parties expired on 1st March 2020 and thereafter the parties signed a licence agreement in spite of the Tenant’s protestations, she proceeded to execute the licence agreement which she has annexed to her said affidavit and marked as LWK – 2. The licence agreement dated 1st March 2020 was signed on 27th May 2020 and was to be valid for a period of two (2) years.

3. Did the parties to the licence agreement intend to create a Landlord/Tenant relationship or a licencee – licensor relationship? This question is answered by a careful reading of the licence agreement between the parties. This is so because the Tenant/Applicant confirmed during the hearing that there is no other agreement between the parties save for the licence agreement. The Tenant has further confirmed that she executed the licence agreement in spite of her misgivings as to the propriety of the document.

a. Clause D of the licence agreement stated;

“This licence agreement is not intended to confer exclusive possession upon the licensee now to create the relation of Landlord and Tenant between the parties and the licensee shall not be entitled to an assured tenancy on a statutory periodic tenancy under any statutory security of tenure now or upon the determination of the licence.

b. Clause 3(i) of the licence agreement states;

“The licensee shall access the said premises and conduct her stay and/or access in the said premises for the purposes designated by the licensor and any fundamental deviation of activity from that designated by the licensor shall be a fundamental breach of this licence.

c.Clause 3(l) states

“The licensee shall procure that the servants, employees, agents and visitors of the licensee will comply strictly with and faithfully observe all rules and regulations as the licensor may from time to time promulgate with respect to the building and to the conduct of the licensee and its servants etc.

d. Clause 4 (c) of the licence agreement provides that either party may terminate the licence agreement by giving to the other at least one (1) months’ notice.

4. It is clear from the selected provisions of the licence agreement highlighted above that;

a. The licence agreement expressly bars exclusive possession of the premises by the Applicant.

b. The Applicant is to access and stay on the premises for the purposes designated by the licensor.

c. The employees, agents and visitors of the licensee are to strictly comply with rules and regulations promulgated by the licensor.

5. The highlights clearly point to a scenario where the parties clearly intended to create a licence rather than a controlled tenancy. The intention of the parties is express and the Tenant/Applicant clearly knew or ought to have known what she was getting herself into when she executed her part of the licence agreement. It is correct that parties are bound by their own agreements and courts cannot impose their own terms upon such agreements. In any event, the Applicant has not sought a variation of the licence agreement and she confirms it is the only agreement between the parties herein.

6. In the case of Nairobi HCC No. 3424 of 1982, BP Nairobi Service Station Ltd Vs BP Kenya Ltd, the court stated;

“I have carefully examined the transaction the subject of this litigation and the relationship of the parties as it emerges from oral testimony given in court and the relationship of the parties as it emerges from oral testimony given in court and the documentary evidence submitted and come to the conclusion that the Plaintiff did not enjoy exclusive possession of the premises and that such possession as it enjoyed was limited by the substantial degree of control that the grantor continued to exercise of the operations of the station and on the premises themselves. I have carefully examined the agreement dated 24th June 1968 which I have determined to be the document evidencing the relationship between the parties and governing their conduct, terms which clearly suggest that it is intended to create a licence rather than a contractual tenancy.”

7. I am guided by the above pronouncement of the learned judge and do find that the parties herein signed a licence agreement and the provisions thereof that clearly bound the parties do not provide for a contractual tenancy.

8. It is therefore my finding that there does not exist a Landlord/Tenant relationship between the parties herein, their relationship being that of a licensee/licensor and governed by the licence agreement between the parties.

9. That being the case, the Tribunal lacks the requisite jurisdiction to hear and determine this dispute. The Applicant’s reference to the Tribunal dated 21st September 2020 is hereby dismissed with costs to the Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Muma (Vice Chair) this 28thday of January, 2022 in the presence of Alusiolafor theTenantand in the absence ofthe Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL