[2022] KEBPRT 686 (KLR)

Lusweti v Adam & 2 others (Tribunal Case E262 of 2022) [2022] KEBPRT 686 (KLR) (Civ) (30 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 686 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E262 of 2022

Andrew Muma, Vice Chair

August 30, 2022

Between

Brian Barasa Lusweti

Applicant

and

Shuaib Adam

1st Respondent

Endovile Company Limited t/a Soko Safi & another

2nd Respondent

Ruling

Parties and Their Representatives 1. The applicant is the head tenant of the suit property in this matter, who occupies a business stall situated on Ngong Road within Nairobi County (hereinafter the “tenant”).

2. The firm of Orwa Seda & Company Advocates represents the applicant in this matter.

3. The 1st respondent is the manager and caretaker of the suit premises rented out to the tenant.

4. The 2nd respondent is the landlord and owner of the suit premises rented out to the tenant (hereinafter the “landlord”).

5. The 3rd respondents are the auctioneers who were instructed by the landlord to carry out a proclamation of the tenant’s goods.

6. The firm of Mutimu Kang’atta & Co Advocates represents the 1st and 3rd respondent in this matter.

The Dispute Background 7. On March 17, 2022, the tenant lodged a notice of motion application under certificate of urgency filed under section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering) Establishments Act (cap 301). The applicant sought among other orders, that pending the hearing and determination of the application herein, the landlord be restrained by themselves, their employees, and/or agents from interfering with the peaceful and quiet possession/occupation, trespassing, evicting and/or locking out the tenant from shops in the suit premises.

8. On March 22, 2022, the tenant moved this tribunal by way of reference under section 12(4) of the Landlord and tenant (Shops, Hotels and Catering Establishments) Act wherein he lodged a complaint that he had paid rent up to May 2022, however, the landlord continued to harass the tenant, threatening to evict him.

9. On March 25, 2022, the tribunal ordered that the respondents be restrained by themselves, their employees and/or representatives and/or any other person(s)/institution(s)/body whatsoever from interfering with the peaceful and quiet possession/occupation, trespassing, evicting and/or locking out the tenant from shops in the suit premises or business stalls situated at Ngong road Nairobi pending the hearing of the application inter partes.

Jurisdiction. 10. The jurisdiction of this tribunal is in dispute.

11. The 1st and 3rd respondents filed a notice of preliminary objection dated April 28, 2022. Further, they filed submissions dated May 17, 2022 and the matter was fixed for ruling on August 30, 2022.

Issues for Determination 12. The main issue raised for determination is whether this honourable tribunal has the jurisdiction to hear and determine the present matter.

Analysis And Determination Whether this Tribunal has the jurisdiction to hear and determine this matter 13. At the outset, this tribunal makes reference to section 2 of the Landlord and tenant (Shops, Hotels and Catering Establishments) Act (cap 301) which 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 years; orii.Contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof;

14. In this case, the respondents in their submissions disputed the existence of a controlled tenancy between themselves and the applicant, and asserted that the applicant failed to furnish evidence before this tribunal to prove a landlord/tenant relationship.

15. I find it crucial to highlight section 12(1) of the Landlord and tenant (Shops, Hotels and Catering Establishments) Act which states:(1)A tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this act, and in addition to and without prejudice to the generality of the foregoing shall have power (a) to determine whether or not any tenancy is a controlled tenancy

16. In view of the foregoing statutory provisions, this tribunal is cognizant of the fact that the applicant had been remitting monthly rent payment to the respondents. Further, the applicant made an advance payment of Kshs 1. 4 Million to the respondents. This is evident from the copies of receipts marked “MO-1” which the applicant adduced as proof of remittance of rent.

17. Therefore, based on the above, it can be inferred that the parties herein intended to create a controlled tenancy under the Landlord and tenant Act. This tribunal makes reference to the High Court’s decision in Al-Riaz International Limited v Ganjoni Properties Limited [2015] eKLR (Kasango J) in which the plaintiff therein submitted that the tenancy relationship between the parties therein was a controlled one falling under the purview of the Landlord and Tenant Act. At paragraph 19 of its judgment, the court held as follows:Thus, if a tenancy satisfies any of the conditions provided at section 2, the tenancy automatically becomes a controlled one and subject to the provisions of cap 301 and it does not matter whether the parties had agreed that the provisions of cap301 shall not apply to their relationship.

18. Having determined that the applicant and respondents forged a relationship within the meaning of a controlled tenancy, this tribunal has the jurisdiction to hear and determine the present matter. Pursuant to section 12(4) of the Landlord and Tenant Act, it stipulates:In addition to any other powers specifically conferred on it by or under this act, a tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit.

19. In view of the foregoing, I find that this tribunal has jurisdiction to determine the present case as filed by the applicant.

20. I have in addition looked at the application and the reference and to save on judicial time i find that the two can be heard together whilst maintaining the status quo which is that the tenant continues to enjoy the orders earlier granted.

Ordersa.The preliminary objection is dismissed, the reference is hereby fixed for hearing in on November 2, 2022. b.Interim orders extended till then.c.Each party has 30 days to file documents.d.Costs shall be in the cause.

HON A. MUMA VICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. May this 30th day of August 2022 in the presence of Kang’atta for the 1st respondent/Landlord/Agent, Omanda for the applicants/Tenants.GIVEN under my hand and Seal of this Court on 2022-09-09 13:39:00SIGNED BY: HON. ANDREW MUMA (VICE CHAIRPERSON) (ADMINISTER JUDGEMENTS)THE JUDICIARY OF KENYA.BUSINESS PREMISES RENT TRIBUNALNAIROBIDATE: 2022-09-09 13:39:00