[2022] KEBPRT 97 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 145 OF 2019 (KAKAMEGA)

MACLAOD AGO OMBIMA.............................................................................TENANT

VERSUS

APOLLO AMBUTSI SHIKANGA..............................................................LANDLORD

KENNEDY SHIKUKU T/A

ESHIKHONI AUCTIONEERS.............................................................AUCTIONEER

RULING

1. This matter was on 25th October 2021 fixed for delivery of ruling on 25th November 2021. However, it turned out that the Tribunal was not sitting on that date.

2. According to the tenant’s submissions of 25th October 2021, he was evicted in September 2019 a fact which I have confirmed from the file record. The actual date of eviction was 25th September 2019.

3. The said eviction was pursuant to this Tribunal’s order of 2nd September 2019. He thereafter filed an application dated 1st October 2019 seeking inter-alia for return of the confiscated goods, opening of doors of the business premises and restoration back to the premises.

4. He also sought for an order directing the landlord to compensate him for the loss incurred on account of unlawful distress for rent.

5. I have noted that the eviction order given on 2nd September 2019 directed the tenant to pay rent arrears of Kshs.684,000/- which became the subject matter of Kakamega CMCC No. 252 of 2019 between the landlord as plaintiff and the tenant as defendant.

6. It is not clear at what stage the said matter has reached. Suffice to say that the compensation sought by the tenant arises from execution of this Tribunal’s eviction order of 2nd September 2019.

7. After the tenant was evicted from the suit premises, this Tribunal ceased to have jurisdiction over any subsequent dispute since such jurisdiction is derived from existence of a landlord and tenant relationship.

8. In that regard, I rely on the decision in Republic – vs- Chairperson, Business Premises Rent Tribunal at Nairobi ex-parte Suraj Housing & Properties Limited & 2 Others (2016) eKLR at page 7/11 where the court cited with approval the decision in Pritam – vs- Ratilal & Another (1972) EA 560 as follows:-

“As stated in the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act itself, it is an Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. Therefore the existence of the relationship of landlord and tenant is a pre requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal: otherwise the tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply outside it, the tribunal has no jurisdiction”. (emphasis added).

9. The relationship between the landlord and tenant having been brought to an end by the order of 2nd September 2019 and subsequent eviction which took place on 25th September 2019, this Tribunal has no jurisdiction to entertain the tenant’s claim for compensation which should be filed in an ordinary Court of Law.

10. In the premises, the application dated 1st October 2019 and the tenant’s claim for compensation is dismissed for want of jurisdiction with costs to the landlord.

It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 12TH DAY OF JANUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

IN THE PRESENCE OF:

TENANT PRESENT IN PERSON

NO APPEARANCE FOR THE LANDLORD.