[2021] KEBPRT 87 (KLR)
The Tribunal found that the tenancy agreement contains a clause allowing either party to terminate the agreement before expiry by giving six months' written notice, and this right is not limited to breach of covenant. By virtue of section 2(1)(b)(ii) of Cap 301, such a clause renders the tenancy a controlled...
Source-derived case information.
- Citation
- [2021] KEBPRT 87 (KLR)
- Parties
- Applicant: Mathews Gitonga Kihara; Respondent: Peter Geche Karanja
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E173 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Tribunal Jurisdiction
- Outcome
- preliminary objection dismissed with costs to the tenant; matter to proceed to hearing on merits
- Legal Topics
- Controlled Tenancy, Jurisdiction of Tribunal, Termination Clauses, Procedure for Reference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathews Gitonga Kihara
Applicant
Peter Geche Karanja
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Tribunal Jurisdiction
Legal Issues
- 1 Whether the tenancy agreement constitutes a controlled tenancy under Cap 301, Laws of Kenya.
- 2 Whether the Business Premises Rent Tribunal has jurisdiction to hear the reference.
- 3 Whether a plaint is required to be filed in support of the application.
Ratio Decidendi
The Tribunal found that the tenancy agreement contains a clause allowing either party to terminate the agreement before expiry by giving six months' written notice, and this right is not limited to breach of covenant. By virtue of section 2(1)(b)(ii) of Cap 301, such a clause renders the tenancy a controlled tenancy, regardless of the overall term. Therefore, the Tribunal has jurisdiction to hear the reference. Additionally, the law only requires the filing of a reference upon service of a termination notice, not a plaint. The preliminary objection by the landlord, challenging both jurisdiction and procedure, is without merit and is dismissed with costs to the tenant.
Court Disposition
preliminary objection dismissed with costs to the tenant; matter to proceed to hearing on merits
Orders
- The preliminary objection by the landlord/respondent is dismissed with costs to the tenant.
- The application dated 4th June 2021 shall proceed to hearing on the merits.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E173 OF 2021 (NAIROBI)
MATHEWS GITONGA KIHARA....................................APPLICANT
VERSUS
PETER GECHE KARANJA.........................................RESPONDENT
RULING
1. Before me is a preliminary objection dated 29th June 2021 challenging the jurisdiction of the Tribunal in hearing and determining the instant reference.
2. It is the Landlord’s case that the relationship between him and the tenant does not amount to a controlled tenancy as the tenancy agreement is for 5 months.
3. The Respondent acknowledges that this Tribunal has jurisdiction to determine whether or not any tenancy is controlled under section 12 of Cap 301, Laws of Kenya. He submits that if it is found that the same is not controlled, then the Tribunal must down tools in line with the decisions in the case of Republic – vs- Business Premises Tribunal and Another ex-parte Albert Kigera Karume (2015) eKLR and the Locus Classicus Case of Owners of Motor Vessel ‘Joey’ -vs- Masters of the Motor Vessel Tugs “Barbara” and Steve B’ (2008) IEA 367.
4. The Respondent concludes that since the tenancy is for 5 years 5 months, it is not within the ambit of Section 2(b) (1) of Cap. 301, Laws of Kenya and the Tribunal has no jurisdiction.
5. On the other hand, the tenant submits that the tenancy is controlled in that it contains a Clause to the following effect:-
“…..the landlord or tenant may terminate the agreement before expiry of the lease by giving a prior 6 months notice in writing of the intention to do so……..”.
6. The tenant cites the decision in the case of Mohamed Noor Abdullahi – vs- al-Sawaw Mohamed Abdulqader & Another(2021) eKLR where it was held as follows:
“The tenancy between the tenant and the landlord is a controlled tenancy in view of the fact that the tenancy provides for a termination of the tenancy other than for breach of covenant within four years from the date of commencement thereof”.
7. On the second ground that the application is not supported by a plaint and the orders sought are baseless bad in law and an abuse of due process, the tenant submits that section 6 of Cap. 301 only requires a party served with a termination notice to file a reference and does not mention filing of a plaint.
8. I have looked at the tenancy agreement marked “MGK 1” and Clause 3(6) thereof provides as follows:-
“in the alternative and without prejudice to paragraph 3 (a) herein above, either the Landlord or the tenant may terminate the agreement before expiry of the lease by giving a prior six (6) months notice in writing of the intention to do so……………”
9. The foregoing provision of the tenancy agreement makes the tenancy controlled by dint of section 2(1)(b)(ii) of Cap. 301 as the termination clause is not predicted upon breach of covenant by either party.
10. As regards necessity to file a plaint, I only need to cite section 6(1) of Cap. 301, which provides as follows:-
“A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice may before the date upon which such notice is to take effect refer the matter to a Tribunal whereupon such notice shall be of no effect until and subject to the determination of the reference by the Tribunal”.
11. Regulation 5 of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides for filing of Forms B or C by the tenant or landlord respectively by way of reference under section 6 of the Act. There is no requirement to file a plaint.
12. From the foregoing analysis, the preliminary objection by the Landlord/Respondent has no merit and is dismissed with costs to the tenant.
13. The application dated 4th June 2021 shall proceed to hearing on the merits.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF DECEMBER 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of :
WAMBUGU FOR TENANT/APPLICANT
CHEBET FOR THE LANDLORD
FURTHER ORDER: MENTION ON 20/1/2022 TO TAKE DIRECTIONS ON THE PENDING APPLICATION AND ANY NEW APPLICATION BY THE TENANT.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL