[2024] KERRT 303 (KLR)
The tribunal found that the plaintiffs, having acquired the properties through mortgages and holding 99-year leases, are not tenants but home owners. The relationship between the parties does not constitute a landlord/tenant relationship as contemplated under Section 2 of the Rent Restriction Act. The standard rent...
Source-derived case information.
- Citation
- [2024] KERRT 303 (KLR)
- Parties
- Plaintiff: Maureen Moraa Mabiria; Plaintiff: Liza Shaka Shubaka; Plaintiff: Jane Wacuka Gikandi; Plaintiff: Beatrice Odiyo; Plaintiff: Silva Kiheru; Plaintiff: Rittah Okal; Defendant: Dan Ojijo; Defendant: Villa Care Man. Limited; Defendant: Maureen Ojijo; Defendant: Sigimo Enterprises
- Court
- Rent Restriction Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E180 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Tribunal Jurisdiction
- Outcome
- Preliminary objection upheld; suit struck out for want of jurisdiction.
- Judges
- HK KORIR
- Legal Topics
- Rent Restriction Act Jurisdiction, Landlord Tenant Relationship, Sectional Property Ownership, Service Charge Arrears
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maureen Moraa Mabiria
Plaintiff
Liza Shaka Shubaka
Plaintiff
Jane Wacuka Gikandi
Plaintiff
Beatrice Odiyo
Plaintiff
Silva Kiheru
Plaintiff
Rittah Okal
Plaintiff
Dan Ojijo
Defendant
Villa Care Man. Limited
Defendant
Maureen Ojijo
Defendant
Sigimo Enterprises
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Tribunal Jurisdiction
Legal Issues
- 1 Whether the Rent Restriction Tribunal has jurisdiction over disputes involving sectional property owners who have leased property for 99 years.
- 2 Whether the relationship between the parties constitutes a landlord/tenant relationship under Section 2 of the Rent Restriction Act, Cap 296.
- 3 Whether the suit falls within the statutory definition of a controlled tenancy under the Act.
Ratio Decidendi
The tribunal found that the plaintiffs, having acquired the properties through mortgages and holding 99-year leases, are not tenants but home owners. The relationship between the parties does not constitute a landlord/tenant relationship as contemplated under Section 2 of the Rent Restriction Act. The standard rent far exceeds the statutory threshold, and the transaction is of a commercial nature. Consequently, the tribunal lacks jurisdiction to hear and determine the dispute. Any proceedings or orders issued without jurisdiction are nullities, and the preliminary objection is upheld.
Court Disposition
Preliminary objection upheld; suit struck out for want of jurisdiction.
Orders
- The preliminary objection is upheld.
- The suit is struck out for want of jurisdiction.
Full Case Text
Judgment text and source record
39 paragraphs
Mabiria & 5 others v Ojijo & 3 others (Tribunal Case E180 of 2021) [2024] KERRT 303 (KLR) (30 January 2024) (Ruling)
Neutral citation: [2024] KERRT 303 (KLR)
Republic of Kenya
In the Rent Restriction Tribunal
Tribunal Case E180 of 2021
HK KORIR, Chair
January 30, 2024
Between
Maureen Moraa Mabiria
1st Plaintiff
Liza Shaka Shubaka
2nd Plaintiff
Jane Wacuka Gikandi
3rd Plaintiff
Beatrice Odiyo
4th Plaintiff
Silva Kiheru
5th Plaintiff
Rittah Okal
6th Plaintiff
and
Dan Ojijo
1st Defendant
Villa Care Man. Limited
2nd Defendant
Maureen Ojijo
3rd Defendant
Sigimo Enterprises
4th Defendant
Ruling
1. By a notice of preliminary objection dated 31st July 2023, the Defendant opposed the suit on the ground inter alia that the tribunal lacks the requisite jurisdiction to hear and determine this suit, since the tenancy does not fall within Section 2 of the Rent Restriction Act cap 296.
2. The Plaintiff/Applicant filed a notice of withdrawal of preliminary objection dated 4th August 2023.
3. Directions were given to both parties for the P.o to be canvassed by way of written submissions, which the parties did. I shall proceed to consider the same.
4. The Defendants through there submissions states that the applicants are not tenants but home owners, the plaintiff herein leased the sectional property for 99 years at a cost of Ksh. 6,950,000/= therefore there is no Landlord/Tenant relationship, they are in arrears of substantial amount of money which is in terms of service charges amounting to Ksh. 2,500,000/=.
5. The plaintiff herein opposing the preliminary objection alleges there are residential premises and commercial premises and as such the suit was filed in a proper court, with jurisdiction to determine the matter.
6. Section 2 of cap 296, gives the tribunal jurisdiction to determine disputes. It states that: -2. Application(1)This Act shall apply to all dwelling-houses, other than—a)excepted dwelling-houses;b)dwelling-house let on service tenancies;c)dwelling-houses which have a standard rent exceeding two thousand five hundred shillings per month, furnished or unfurnished.”
7. A court jurisdiction flows from either the constitution or legislation or both, further no court can confer jurisdiction upon itself, the plaintiffs bought the houses through mortgages which is a commercial transaction, where a court assumes jurisdiction and proceeds to hear and determine a matter not within its jurisdiction, the proceedings and determination are nullities.Accordingly, the P.o is upheld with no orders as to costs.
8. It, therefore, follows that the interim orders earlier granted have to be and are hereby discharged for want of Jurisdiction.
RULING DELIVERED THIS 30TH DAY OF JANUARY 2024 IN OPEN COURT.CERTIFIED COPIES TO ISSUE TO PARTIES ACCORDINGLY.SIGNEDH.K KORIRCHAIRPERSONRENT RESTRICTION TRIBUNALNAIROBI