[2021] KEBPRT 642 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

BPRT 909 OF 2020 (NAIROBI)

MOHAMED NUUR ABDULLAHI..................................TENANT/APPLICANT

VERSUS

AL-SAWAW MOHAMMED ABDULQADER

A. HASSAN..............................................................LANDLORD/RESPONDENT

RULING

The Landlord in this matter has filed a notice of preliminary objection dated 14th December 2020. The objection is as to the jurisdiction of this Tribunal to hear and determine this reference filed by the Tenant. The grounds in support of the preliminary objection are as follows;

1. The tenancy for shops numbers A06, A07, A014 and A015 were all reduced into writing and therefore do not fall within the definition of controlled tenancies under section 2(1) (a) of Cap 301.

2. The terms of the tenancies aforesaid are not fixed and therefore do not fall within the definition of controlled tenancies as set out under section 2(1) (b) (ii) of Cap 301.

3. The tenancy agreements do not contain a clause for termination within five years from the commencement of the tenancy and therefore do not fall within the definition of controlled tenancies.

The parties were ordered to file within submissions on 15th December 2020. The parties have duly filed their submissions which I proceed to summarize as follows;

Landlord’s Submissions in Support of the Preliminary Objection:

1. That the time of filling the preliminary objection, the Landlord relied on a general tenancy agreement.

2. That the general tenancy agreement did not have specific tenancy term neither provides for a specific term and has a termination clause.

3. That the Landlord has now on his possession a more specific agreement which provides for a specific term and has a termination clause.

4. That since the tenancy term is for more than five years, the preliminary objection on jurisdiction stands.

5. That the tenancy agreements are for a period of five years and three months and they therefore exceed the five-year period that qualifies a controlled tenancy.

6. The Landlord has placed reliance on the cases of;

a. John Tomino Chesery Vs Sammy Kipketer Cheruiyot [2017] eKLR.

b. Mugo Holdings Limited Vs Attorney General & another [2016] eKLR.

c. Owners of the motor vessel “Lilian S” Vs Caltex Oil Kenya Ltd.

I will revisit to those decisions later in this ruling.

Tenants Submissions on the Landlord’s Notice of Preliminary objection

The Tenant’s submissions can be summarized as follows:

1. That the Landlord herein has been receiving rent from the Tenant.

2. That the tenancy agreement provides as follows:

Clause (I (f): The Tenant shall give the Landlord two (2) months written notice prior to termination of the agreement or pray two month’s rent in lieu of notice.

Clause ii (c): If the Landlord decides to terminate the agreement, he shall give the Tenant two (2) month’s written notice prior to such termination.

3. That section 2(1)(b) ii squarely falls in this case where the agreement provides for a termination clause other than for breach of covenant.

4. That the Tenant has been a Tenant in the suit premises for more than ten years.

5. The Tenant in opposing the preliminary objection has relied on nine authorities.

The issue that arises for determination in this preliminary objection is whether the tenancy between the Landlord herein and the Tenant is a controlled tenancy or not, and therefore whether this Tribunal has jurisdiction to hear the reference brought before it by the Tenant.

The complaint filed by the Tenant against the Landlord on 20th November 2020 relates to the following;

I. That the tenancy is a controlled tenancy within the meaning of section 2 of Cap 301.

II. That the Landlord issued the Tenant with a letter notifying the Tenant of the termination of his tenancy within three months.

III. That the Landlord has unlawfully increased the monthly rent from Kshs 10,000 to Kshs 30,000 and to Kshs 50,000/-per month.

IV. That the Landlord has unlawfully and without any right justification locked the Tenant’s shop No 15.

V. The purported notice by the Landlord is null and void.

Under section 2(i) of Cap 301, a controlled tenancy means a tenancy of a shop, hotel or catering establishment;

a) Which has not been reduced into writing OR

b) Which has been reduced into writing and which;

i. Is for a period not exceeding five years OR

ii. Contains provision for termination otherwise than for breach of covenant within five years from the date thereof OR

iii. Relates to premises of class specified under subsection (2) of this section.

The Landlord in his submissions at paragraph 4(d) states as follows;

“Having now been given the tenancy agreements pertaining to each shop, we have noted that there is a slight variation in the facts stated in grounds 2 and 3 of our preliminary objection. The tenancy agreements do have a specific term. Additionally, they contain a clause for termination.”

It is clear from the above admission that the tenancy the Landlord alludes to had a termination clause for termination of the tenancy otherwise than for a breach of covenant within five years from the commencement thereof. This therefore places the relationship between the Landlord and the Tenant as one of a controlled tenancy.

The rival positions taken by the parties on this dispute do not make the resolution of the preliminary objection easy without mine. The Tenant is of the position that he is a lawful Tenant of the Landlord in a controlled tenancy and pays his rent directly to the Landlord. the Landlord on the other hand, in his affidavits, is of the view that the Tenant is a stranger to him and if he has any lease, then the same is a sublease and the Tenant should pursue whoever illegally sublet the suit premises to him.

Whether or not the Tenant herein is a Tenant of the Landlord, and whether or not the tenancy, if any, between them is a controlled tenancy is a matter which can only be determined in a full hearing. I say this because the Landlord in his submissions seems to have abandoned his position taken in his affidavits that the Tenant is a stranger and instead challenges the jurisdiction of the Tribunal on the basis that the tenancy agreements are for a period of five years and three months. The question then would be, did the Tenant herein execute the agreement for five years and three months or he is occupying the premises on the basis of an unwritten agreement and an illegal sublease of the premises? Once again, these are matters of evidence and can only be determined on the basis of evidence.

The cases of Joseph Tomino Cheserem Vs Sammy Kipketer Cheruiyot (supra) decided that the fact that the tenancy between the parties were for endless term removed the tenancy from the ambit of a controlled tenancy.

The lease alluded to by the Landlord at paragraph 4 d of his submissions is clearly stated to be of a specific terms and does contain a clause for termination. This authority can therefore be clearly distinguished from the obtaining facts in this dispute.

In conclusion therefore, I do make the following findings;

1. That 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.

2. That the tenancy between the Landlord and the Tenant, on the Landlord’s own admission satisfied the requirements of section 2(1) of Cap 301, and 1 align/associate myself with the decision in the case of Al-Riaz International Limited Vs Ganjoni Properties Ltd [2015] eKLR where at page 7, the court stated;

“In my view, the provisions of section 2 of Cap 301 are clear. That if a tenancy satisfied any of the conditions provided at section 2, the tenancy automatically becomes a controlled one and subject to the provisions of Cap 301…”

3. That even if I could be wrong in arriving at the above findings, I would still dismiss the preliminary objection by the Landlord for the reason that establishing the relationship between the Landlord and the Tenant would require the presentation of evidence. This in view of the fact that both parties have taken (in their affidavits) opposing positions as to the nature of their relationship.

In the often quoted case of Mukhisa Biscuit Vs West End Distributors, the court stated that:

“…Preliminary objection is in the nature of what used to be a demurer. It raises pure points of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any facts have to be ascertained or if what is sought is the exercise of judicial discretion.”

4. That in the circumstances, the Landlord’s preliminary objection dated 14th December 2020is hereby Dismissed with costs to the Tenant.

5. This ruling shall apply and be adopted as the ruling on the preliminary objections filed on 8th February 2021 in the following matters,

a. Nairobi BPRT case No. 915 of 2020 Mund Abdi Abdifatah Vs Ali Sawae Mohammed AbdulQader A. Hassan.

b. Nairobi BPRT Case No 859 of 2020 Saleh Aidha Hussein Vs Ali Sawae Mohamed AbdulQadel A. Hassan.

c. Nairobi BPRT Case No. 857 of 2020 Mohamed Abdulahi Abdi Vs Ali Sawae Mohammed A Hassan.

HON. CYPRIAN MUGAMBI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered this 12th day of March, 2021 in the presence of Ms Mohammed holding brief for Lakicha for the Tenantsand Ms Sega for the Landlords;

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL