[2022] KEBPRT 885 (KLR)

Michael t/a Nairobi Grill Market Limited & 2 others v Kifam Enterprises Limited & another (Tribunal Case E107 of 2022) [2022] KEBPRT 885 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 885 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E107 of 2022

Gakuhi Chege, Vice Chair

October 7, 2022

Between

Michael t/a Nairobi Grill Market Limited

1st Applicant

Tikos Foods Limited

2nd Applicant

Checkers Brands Limited

3rd Applicant

and

Kifam Enterprises Limited

1st Respondent

Njoka & Njoka Services Limited

2nd Respondent

Ruling

1. Before me is a preliminary objection dated 24th March 2022 by the landlord which raises five (5) grounds as follows:-i.That this honourable Tribunal lacks jurisdiction to entertain and/or hear and determine the tenants’/Applicants’ reference and the amended application dated 18th February 2022 since the letter of offer which formed the basis of the contract between Nairobi Grill Market Limited and Kifam Enterprises Limited created a tenancy for five (5) years three (3) months commencing on 1st November 2016 and terminating on 31st January 2022. ii.That the tenancy between the landlord, Kifam Enterprises Limited and Nairobi Grill Market Limited, (the tenant) is not a controlled tenancy as defined under section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.iii.That the honourable Tribunal lacks jurisdiction to hear and determine the tenants’/applicants’ amended application since there exist no landlord-tenant relationship, the tenancy having terminated on 31st January 2022 by effluxion of time.iv.That Tikos Foods Limited and checkers Brands Limited lack the locus standi to lodge the application dated 18th February 2022. v.That the present suit by the tenants/applicants is fatally defective and an abuse of court process.

2. On 25th May 2022, the parties were directed to file written submissions in respect of the preliminary objection and the matter was listed for mention on 24th June 2022 to confirm compliance.

3. When the matter came up for mention on 24th June 2022, the Respondents’ submissions were confirmed to be on record. The tenant’s counsel indicated that he was not ready to proceed with the matter by way of submissions and requested to cross-examine the Respondent.

4. This Tribunal observed that there was no known law that allows a party to cross-examine another for purposes of determination of a preliminary objection. The tenants’ counsel then indicated that there was an application dated 23rd June 2022 in which the tenant was seeking for my recusal from conducting the instant proceedings. I therefore directed that the application be heard orally on 8th July 2022.

5. On 8th July 2022, the tenants’ counsel was unavailable and sent another counsel to apply for another hearing date for the application dated 23/6/2022. The matter was therefore adjourned to 19th July 2022 for hearing.

6. On 19th July 2022, the matter proceeded to hearing of the application dated 23/6/2022 orally in open court and the same was reserved for ruling on 9th September 2022.

7. On 9th September 2022, both parties did not appear as a result of which the ruling was adjourned to 16th September 2022. The registry upon updating the CTS Portal confirmed that an automatic SMS notifying parties of the new date was sent.

8. On 16th September 2022, both parties’ advocates appeared and the ruling application dated 23/6/2022 was delivered. The said application having been denied, the tenants’ counsel was directed to file within seven (7) days submissions on the preliminary objection dated 24th March 2022 and the application dated 18th February 2022 by the Landlords/Respondents. Ruling date was fixed on 7th October 2022.

9. Through another application dated 26th September 2022, the Tenants/Applicants moved this Tribunal under certificate of urgency seeking inter-alia for setting aside of the orders of 16th September 2022 directing parties to file submissions to the application dated 18th February 2022 and preliminary objection dated 24th March 2022 pending hearing and determination of the said application. The tenants also sought for stay of proceedings in this matter pending hearing and determination of the application and intended appeal.

10. The application was placed before me in chambers and I gave the following directions:-i.The application is not certified urgent as the applicants have not demonstrated that there is any pending appeal against the ruling of 16th September 2022. ii.The notice of preliminary objection on the question of the Tribunal’s jurisdiction takes precedence over all other proceedings as ruled on 16th September 2022. iii.The matter shall proceed to ruling as earlier directed on 7th October 2022.

11. By the time of writing this ruling, the tenants had not filed any submissions or other response to the preliminary objection dated 24th March 2022. Although the preliminary objection is unopposed, I shall consider it on the merits based on the materials on record and the law applicable.

12. In the case of Owners of the Motor Vessel ‘Lillian S’ – vs- Caltex Oil (Kenya) Ltd (1989) eKLR at page 9-10 Nyarangi J.A. observed as follows:-“…………..I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction……………”.

13. Citing “Words and phrases” legally defined – vol 3:1-N. page 113, the Judge observed as follows:-“It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined”.

14. The tenant one Michael t/aNairobi Grill Market Limited instituted a reference dated 31st January 2022 complaining that the Respondents had disconnected electricity and wanted to illegally evict him from the business premises through an illegal and defective notice served upon him without justifiable cause and stood to suffer irreparable loss and damage.

15. The tenant filed a simultaneous motion of even date seeking restraining orders against the Respondents and reconnection of electricity. He also sought to be allowed to repay rent arrears in instalments within 90 days together with rent accrued.

16. Interim orders were given on 1st February 2022 directing reconnection of electricity and restraining the Respondents from disconnecting the same pending hearing of the application inter-partes on 17th February 2022.

17. In the supporting affidavit of the tenant sworn on 31st January 2022, he complained about service of a defective notice by the 2nd Resp9ondent requiring him to vacate from the suit premises on or before 31st January 2022. The notice is marked ‘MNG1’.

18. The said notice demanded payment of rent arrears of Kshs.149,298/- and handing over vacant possession of the suit premises as the lease was to expire on 31st January 2022.

19. The Respondents filed a replying affidavit sworn on 14th February 2022 by one Andrew Waititu Kigoto in his capacity as a director of the landlord/1st Respondent annexing as ‘AW-001’ a letter of offer executed between Kifam Enterprises Limited (as Landlord) and M/S Nairobi Grill Market Limited (Tenant) for a term of 5 years 3 months commencing on 1st November 2016 until 31st January 2022. The said offer letter is executed by both parties.

20. In view of the said letter of offer and the term of lease, the landlord contends that this Tribunal lacks jurisdiction as the landlord/tenant relationship terminated by effluxion of time on 31st January 2022 and the landlord had no intention of renewing the tenancy or creating a month to month tenancy.

21. Section 2(1) of Cap. 301, Laws of Kenya defines a controlled tenancy to mean a tenancy of a shop, hotel or catering establishment-a.Which has not been reduced in writing orb.Which has been reduced into writing and Which-i.Is for a period not exceeding five years andii.Contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof oriii.Relates to premises of a class specified under subsection (2) of this section”.

22. On the basis of the letter of offer marked ‘MNG1’, the lease created therein was for a period of 5 years 3 months and terminated on 31st January 2022 by effluxion of time. There is no evidence before me that a periodic tenancy of month to month was created thereafter or that the lease has been extended for a period of less than 5 years so as to bring it within the meaning of section 2(1) of Cap. 301, Laws of Kenya.

23. The duty of courts of law is to interpret contracts entered into between the parties and not make contracts for them. In the case of Jiwaji & Others – vs- Jiwaji & Another (1968) EA 547 at page 554, the court cited Lord Halsbury L.C in Smith – vs- Cooke (1891) AC at pg. 299 thus:-“I must say I for one have always protested against endevouring to construe an instrument contrary to what the words of the instrument itself convey, by some sort of preconceived idea of what the parties would or might have intended when they begun to frame their instrument”.“……………I think I am not entitled to put into the instrument something which I do not find there, in order to satisfy an intention which is only reasonable if I presume what their intentions were. I must find out their intentions by the instrument they have executed, and if I cannot find a suggested intention by the terms of the instrument which they have executed, I must assume that their intentions were only such as their deed discloses”.

24. Going by the letter of offer, it is clear that the parties herein intended to create an uncontrolled tenancy and even after it terminated by effluxion of time, they did not contemplate to create a periodic tenancy under its terms. I am therefore unable to find how this Tribunal would have jurisdiction to determine any dispute arising therefrom.

25. In the premises, I find and hold that this Tribunal has no jurisdiction to entertain the instant proceedings between the tenant and the Respondents herein. The lack of jurisdiction cannot be cured by adding other parties as tenants in this suit as sought through the application dated 18th February 2022 by the tenant.

26. As regards costs, the same are in the Tribunal’s discretion under section 12(1)(k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the Respondents costs.

27. In regard to the interim orders granted herein on 1st February 2022, the same were made without jurisdiction and as such liable to be set aside or discharged. I shall therefore act accordingly.

28. In conclusion, the final orders which commend to me are:-i.The preliminary objection by the Respondents dated 24th March 2022 is hereby upheld.ii.The tenant’s reference and applications filed subsequent thereto are hereby struck out for wan of jurisdiction.iii.The interim orders given on 1st February 2022 are hereby set aside or discharged forthwith.iv.Costs of the reference are awarded to the Respondents to be agreed upon and if not taxed by this Tribunal.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 7TH DAY OF OCTOBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Odero for the Tenant/RespondentMiss Sinana for the Respondents