[2021] KEBPRT 324 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 194 OF 2020 (NAIROBI)

MOHAMMED MUTHEE.................................................APPLICANT/TENANT

VERSUS

MUMBAI SHOPPING COMPLEX...............1ST RESPONDENT/LANDLORD

GIKOMBA BUSINESS CENTRE..................2ND RESPONDENT/LANDLORD

RULING

A. Parties and Representatives

1. The tenant Mohammed Muthee rented space on LR No.209/19680 Mumbai Shopping Complex Nairobi for the business (herein after known as the Tenant.)

2. Learned counsel Anyango Opiyo & Company Advocates represent the tenant/applicant in this Reference.

3. The Respondent is the Landlord and owner of suit premises on LR No. 209/19680 rented out to the Tenants. (hereinafter referred to as the Landlord)

4. The learned Magare Musundi & Company Advocates represent the Landlord/Respondent in this matter.

B. The Dispute Background

5. On the 1st of April 2015 the Landlord and the Tenant entered into a tenancy agreement for the suit premises LR No. 209/19680 which was supposed to run for a period of five years and three months.

6. The Tenant claims that they received illegal threats to evict them from the premises from the Landlord.

7. The Landlord issued the Tenants with an undated notice of termination which required them to give the Landlord vacant possession on or before 31st of March 2020.

8. On the 18th of February 2020 the Tenant moved this Tribunal by way of reference dated 18th of February 2020 and notice of motion under certificate filed on the 18th of February 2020 under Section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301 seeking amongst other orders that pending the hearing and determination of the application that the Tribunal order the Landlord/Respondents to be restrained from interfering with the peace and quiet enjoyment of the Tenant and/or evicting or harassing the tenant from the premises. Further that the Landlords/Respondents be restrained from terminating the Tenants/Applicants lease of the business premises.

9. This Tribunal granted orders to restrain the Landlords/Respondents from interfering with the peace and quiet enjoyment of the tenant or evicting, harassing the tenant from the business premises.

C. Jurisdiction

10. The jurisdiction of this Tribunal is in dispute.

D. The Tenant’s Claim

11. The Tenant filed a reference dated 18th of February 2020 together with a notice of motion application under certificate of urgency and supporting affidavit dated 18th of February 2020 which pleadings form the basis of this claim.

12. The tenant obtained restraining orders as against the Landlord on the 6th of March 2020 and to date the Landlord is still restrained from interfering with the peace and quiet enjoyment of the Tenant on the business premises. A further affidavit was sworn by the tenant on 2nd August 2021.

E. The Landlord’s Claim

13. The landlord has filed a replying affidavit dated 13th of April 2021 sworn by the manager of the Landlord company.

14. Parties filed written submissions on the 2nd of August 2021 and the matter was fixed for ruling on the 7th of September.

F. Matters Not in Dispute

15. There is no dispute that there was a tenancy agreement that was reduced into writing and that the same has since expired.

G. List of Issues for Determination

It is the contention of this Tribunal that the matters raised for determination are as follows

a) Whether the Tribunal has jurisdiction under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to investigate the complaint raised by the Tenant?

b) Whether the termination notice issued by the Landlord was valid?

c) Whether the Tenant’s application meets the threshold required to grant the reliefs sought?

H. Analysis and Findings

Whether the Tribunal has jurisdiction under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to adjudicate upon the issues raised by the tenant?

16. Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenyaprovides that;

“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit”

17. The above provision allows the Business Premises and Rent Tribunal to in addition to the powers conferred upon it by the Act investigate on any other matters that may be raised in relation to a controlled tenancy.

18. The same Act at section 2 defines a controlled tenancyas;

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 commencement

thereof; or

19. In this case the Landlord contends that there is no existing lease agreement between themselves and the applicant by virtue of the fact that the lease agreement had expired by effluxion of time

20. The landlord contends further that upon expiry of the lease the Tenant was expected to either vacate the premises or renew the lease which they failed to do and as such the Tribunal lacks jurisdiction to hear and determine the Tenant’s reference and application.

21. The tenant in their supporting affidavit annexed a bundle of documents marked MM-2 which included a lease agreement dated 1st June 2012 which was duly executed by both parties. From the said lease agreement, the term of subsistence of the agreement was stipulated as “For a period of 5 years 3 months commencing 1st June 2012 to one HASSAN SALIM MOHAMED.

22. Based on the above term this lease agreement was deemed to expire on the 1st of June 2017. And as such the above lease is not in existence.

23. The Landlord/Respondents annexed in their Replying Affidavit a lease agreement marked HSR-1 that was undated but stipulated that the term of its subsistence was “for a period of 5 years 3 months commencing 1st April 2015. ” Ending 30th June 2020 to Mohamed Muthee the Applicant,which was also duly executed by both parties.

24. From the provided terms of the lease it is not in contention that the lease expired on 30th June 2020 and it is also not in dispute that the Landlord has as late as August 2021 continued to receive rent as evidenced by several receipts issued by BS SALAH COMPANY of 73,830/- per month.

25. I have carefully perused the undated notice issued to Mohammed Muthee which reads:

RE STALL NO 8 ROOFTOP LR NO. 209/19680 MUMBAI SHOPPING COMPLEX

PLEASE TAKE NOTICE that your lease in respect of the above mentioned stall expires on 31st March 2020. This is to give you formal notice pursuant to the Lease Agreement, that you will give the landlord vacant possession on or before the said date. Your security deposit will be paid back to you upon surrendering the said stall to the Landlord……

Together with HSR 1 which is the lease that parties signed which was to terminate on 30th June 2020. I have also looked at the said Tenant’s reference which is dated 18th February 2020 moving this tribunal pursuant to receiving the said notice and I find that at the time the Tenant moved this Tribunal it was during the pendency of the fixed term lease within which time the Tribunal had no jurisdiction. However fast forward and because of the pendency of this matter before the Tribunal and the orders obtained herein the Landlord kept the tenant in the premises and continued to receive rent. It therefore appears that a new month to month tenancy arrangement kicked off courtesy of this tribunal orders and the same continues to date as the Tenant pays and the landlord receives rent.

26. I am alive to the fact that jurisdiction is everything in a suit it goes to the root and if it is lacking the whole substratum collapses for lack of a legal leg to stand upon. I have agonized whether Article 159 of the Constitutioncan come to the rescue here but it appears this is one of the hopeless cases where I cannot breathe life to the reference in any way. The Applicant ought to have moved the right court in the first instance.

27. The upshot is that the Tenants application fails the orders are vacated and the Tenant is free to negotiate a new lease with the Landlord. I have noticed the tenant was served with a notice ending March 30th 2020 instead of 30th June 2020 as per the lease and in the interest of justice I will grant the Tenant 2 months on the same rent pm within which to negotiate enter and sign a new lease failure to which the Landlord will be at liberty to move as per the terms of the lease ending 30th June 2020.

ORDERS

a) The Tenant’s application dated 18th February 2020 is hereby dismissed

b) The Tenant’s reference dated 18th February 2020 is hereby dismissed.

c) The Landlord shall have costs.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 7thday of September 2021 in the presence of Sirma holding brief for Musundi for the Landlord and Wara holding brief for Opiyo for the Tenant.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL