[2025] KEBPRT 198 (KLR)

Mochorwa v Muirungi & another (Tribunal Case E393 of 2024) [2025] KEBPRT 198 (KLR) (28 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 198 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E393 of 2024

P Kitur, Member

January 28, 2025

Between

Nicholas Nyarangi Mochorwa

Applicant

and

Nelson Kiogora Muirungi

1st Respondent

Einsof Group Limited

2nd Respondent

Ruling

A. Parties 1. The Landlord, Nelson Kiogora Muirungi, is the registered owner of the business premises erected on the parcel of land of title number LR No. 209/4218 (hereinafter referred to as the ‘suit premises’).

2. The firm of P.K Njiiri & Company Advocates represents the Landlord.

3. The Applicant, Nicholas Nyarangi Mochorwa, operates a hotel business on the second floor of the suit premises and is a tenant to the Landlord.

4. The firm of Ambalo & Company Advocates represents the Tenant.

B. Background 5. The Landlord and the Tenant entered into a tenancy relationship vide a lease agreement dated 26th November 2021 for the entire second floor of the suit property for a term of five years and three months commencing on 1st October 2021.

6. The tenancy continued uninterrupted until sometime in March 2024 when the Landlord through its Agent, the 2nd Respondent herein, issued an eviction notice to the Tenant for failing to make rent payments and the payment for the hotel inventory as per the lease agreement.

7. The Tenant being apprehensive of the eviction notice by the Landlord, proceeded to file a complaint against the Landlord under section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301 (hereinafter referred to as ‘the Act’).

8. The Tenant additionally filed an application dated 27th March 2024 seeking interim reliefs to which the court allowed the application as prayed save for costs.

9. Shortly thereafter, the Tenant once again moved this court by an application dated 3rd April 2024 seeking the intervention of this court in stopping the Landlord from renovating the suit premises after forcefully evicting the Tenant all while in total disregard of the orders issued earlier by this court and that the Tenant be compensated for loss and damage caused by the forceful eviction, among others.

10. In response, the Landlord filed a Notice of Preliminary Objection dated 8th April 2024 raising the following points of law;i.That this Honourable Tribunal lacks the jurisdiction to hear and determine as the applicant is no longer a tenant and the tenancy relationship ceased to exist on 27th March 2024. ii.That this Honourable Tribunal lacks jurisdiction since the entire suit offends section 2 (1) (b) of the Act.

11. Further, the Landlord filed a Replying Affidavit dated 22nd April 2024 in which he acknowledged the existence of the tenancy relationship between the parties herein and adduced a copy of the lease agreement duly executed by the parties. He however accused the Tenant of breaching the terms of the lease agreement regarding rent payment and payment for inventory, which then prompted him to issue the eviction notice. He states that the outstanding amounts owed for rent and the inventory payment are Kshs. 170,082. 50/- and Kshs. 350,000/- respectively.

12. The Landlord also accuses the Tenant of breaching the lease agreement by subletting the suit premises to a third party contrary to the terms of the agreement.

13. In the affidavit, the Landlord denies the allegation that he disputed the authenticity of the court orders and states that he merely directed the Tenant to effect service of the court orders appropriately rather than the use of hired goons who, according to the Landlord, broke the windows and doors of his residence without justification.

14. The Tenant filed a further affidavit dated 6th May 2024 in response to the Replying Affidavit of the Landlord. In it, the Tenant disputed having sublet the suit premises. He also states that the landlord issued an illegal notice as the lease agreement was yet to expire. Furthermore, the notice was illegal to the extent that it did not comply with the requirements of a notice of eviction as envisaged in the Act.

15. The Tenant also disputes the Landlord's claim that the service of the court orders was inappropriate and states that service upon the Landlord was effected before he decided to illegally evict the tenant from the suit premises. This Tribunal made an Order for the inspection of the suit premises to establish occupation and actual possession of the suit premises.

16. An inspection was duly conducted by the Tribunal and a report duly filed, which report concluded that ‘there was no occupation of the suit premises.’

17. After the proceedings on 30th September 2024, the parties took direction of the court to dispose of the pending Application by way of written submissions which were duly filed by the parties.

C. List Of Issues For Determination 18. Having given full consideration to the proceedings and having ascertained the position regarding occupation, it now falls upon the Tribunal to consider the Preliminary Objection raised, with the main issue for determination being;i.Whether this Tribunal has Jurisdiction to hear and determine this matter.

D. Analysis and Findings 19. Before the court delves into the analysis of the entire suit, it must first satisfy itself of having the requisite jurisdiction to entertain the suit before it. For without jurisdiction, the court cannot proceed further. This position was affirmed in the case of Owners of the Motor Vessel “Lillians S” – vs- Caltex Oil (Kenya) Ltd (1989) eKLR where the court held that:-“Jurisdiction is everything without it a court has no power to move one more step.”

20. The preliminary objection was raised on the following grounds:-i.The tribunal lacks the requisite jurisdiction to hear and determine the matter because the applicant is no longer a tenant and tenancy between the parties ceased to exist on 27th March 2024. ii.The suit offends section 2 (1) (b) of the Act.

21. The leading case on preliminary objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, emphasizes that a preliminary objection must be based on a point of law that, if upheld, would dispose of the case without delving into the merits.

22. With the issue of occupation now settled with the finding that there was no occupation of the suit premises especially by the Tenant, a conclusion can be drawn that the Landlord – Tenant relationship that previously existed had ceased to exist.

23. In Republic v Chairperson - Business Premises Rent Tribunal at Nairobi & another Ex-Parte Suraj Housing & Properties Limited & 2 others [2016] eKLR, the Judge cited with approval the case of Pritam vs. Ratilal and Another Nairobi HCCC No. 1499 of 1970 [1972] EA 560 where it was stated as follows:“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.”

24. From the foregoing, it is the Tribunal’s finding that there does not exist a relationship that can be termed as a Landlord and Tenant relationship, which therefore ousts this tribunal’s jurisdiction to hear and determine the dispute.

25. I therefore proceed to order as follows; E. Ordersa.The Landlord’s Preliminary Objection is hereby upheld.b.The Tenant’s Complaint and Application are hereby struck out.c.Costs are awarded to the Landlord assessed at Kshs. 20,000/=.d.The file is marked as closed.

HON P. KITURBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 28TH JANUARY 2025 IN THE ABSENCE OF THE PARTIES.HON P. KITURBUSINESS PREMISES RENT TRIBUNAL