[2021] KEBPRT 107 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

AT NAIVASHA

TRIBUNAL CASE NO. E001 OF 2021

NEW SOLTA LTD.....................................................................APPLICANT

-VERSUS-

NAIVASHA SOUTHLAKE SACCO LTD..................................RESPONDENT

RULING

Parties and Their Representative

1. The Applicant is New Solta Ltd(hereinafter referred to as the “Applicant”).

2. The Firm of Wairegi Kiarie & Associates represent the Applicant.

(Email Address: wairegikiarie@gmail.com)

3. The Respondent is Naivasha Southlake Sacco Ltd (hereinafter referred to as theRespondent”).

4. The Firm of Mbugua Macharia & Associates Advocates represent the Respondent.

(Email Address: mbuguaedward6@gmail.com)

The Background of the Dispute

5. The Applicant filed a reference dated 17th June 2021 and an Application dated 15th June 2021 under certificate of urgency seeking the following orders;

I. That the application be certified urgent and service of the same be dispensed with in the first instance and same be heard ex-parte;

II. That this Honourable Tribunal be pleased to issue a temporary restraining order pending the hearing and determination of the complaint restraining the Respondent, his servants and or agents from interfering with the Tenant’s right to quiet enjoyment of the premises known as office number 6 situate within Viazi House, Naivasha Town.

III. The OCS Naivasha Police Station do ensure compliance of this orders; and

IV. Costs of the Application be provided for.

6. The Respondent filed a notice of preliminary objection dated 30th June 2021 challenging Jurisdiction of this Honourable Tribunal to hear and determine on the application.

Summary of Proceedings

7. On 21st June 2021, the Applicant filed an Application dated 15th June 2021 seeking the aforementioned orders. On 6th July 2021, the Respondent filed a notice of preliminary objection dated 30th June 2021. The Tribunal ordered that both the application and the preliminary objection shall be heard together. Parties to file their submissions and the status quo to be maintained. On 15th October 2021, parties confirmed compliance with filing of submissions.

Applicant’s Submissions

8. The Applicant’s main issue was whether there is a tenancy relationship between the Applicant and the Respondent. The Tenant submitted that the three letters dated 23rd December 2020, 15th March 2021 and 19th April 2021 were issued by the Respondent because there was a sub-tenancy relationship that had been established. The Applicant submitted that since there was a tenancy relationship between the Parties, the landlord ought to have followed proper procedure in issuance of a Termination notice, which was not the case. The Applicant therefore urged this Tribunal to find that the notices issued by the Respondent were null and void since they did not comply with the provisions of the Act which requires a Landlord to issue a two months’ notice and such notice to be in the prescribed form.

Respondents’ Submissions

9. The Respondent submitted that this Honourable Tribunal lack jurisdiction to hear and determine the Applicant’s case on the ground that there was no tenancy relationship between the parties herein. The Respondent cited the definitions of both a Tenant and Landlord under the Act and argued that as per the definitions, there was no such relationship between the parties. The Respondent relied on the letter of lease which shows that the Landlord is Mrs. Zipporah Njeri under the management of Wainaina Real Estates Ltd (herein “the Agents”) while the Tenant is Naivasha Southlake Sacco Ltd, the Respondent herein. The Respondent Further relied on the Agent’s Letter Dated 27th April 2021 stating that the Respondents were the only Tenants known to the agents.

Issues for Determination

10. I have carefully considered submissions by both parties and proceedings in this matter and identified the following issues for determination;

I. Whether this Tribunal has Jurisdiction to hear and determine on the matter; and

II. Whether the Applicant has satisfied the conditions for warrant grant of an injunction.

ANALYSIS AND DETERMINATION

I. Whether this Tribunal has Jurisdiction to hear and determine on the matter

11. Jurisdiction is everything and once it is challenged, a determination thereon should be made before the Tribunal can proceed further with the disposal of any matter thereto. Where want of jurisdiction is demonstrated not to exist, the Tribunal has no option but to down its tools and proceed no further. The Respondent, through a notice of preliminary objection dated 30th June 2021 challenged the jurisdiction of this Tribunal to hear and determine on this matter on the ground that there was no tenancy relationship between the Applicant and the Respondent, it therefore behooves this Tribunal to make its determination on the issue before it proceeds further. To make this determination, I will make my findings on whether there is a tenancy agreement between the parties herein.

12. It is not in dispute that the lease agreement dated 11th December 2014, with regard to the suit premises being Shop No.6 at Viazi House clearly indicates that the Respondent in this case is the Tenant and Landlord is Mrs. Zipporah Njeri under the management of Wainaina Real Estates Ltd as the Agents. It does not mention the Applicant as party to the Lease.

13. Upon reading Applicant’s application and the Respondent’s replying affidavit and it is clear that the Parties previously worked together in running a Matatu business until when the Applicant formed its own entity. I am guided by the Lease dated 11th December 2014 to determine on impugned tenancy relationship. As stated above, the lease is not in dispute and the Applicant is not a party to the Lease. The Agent managing the premises vide letter dated 27th April 2021 further stated that the Respondents were the only Tenants known to the Agents.

14. Upon perusal of the said lease, I have established that Clause 10 prohibits any act of subletting the premises. The clause states as follows;

“The Tenant will not be permitted to transfer, sub-let or part with possession of the premises. Upon breach of the Covenant, the Landlord may re-enter the premises and there upon the lease shall be terminated.”

The Respondent as such had no power to sublet the premises to anyone and any such subletting would amount to an illegality from the onset. The upshot is that the only Tenancy relationship that has been proved to exist is that between Mrs. Zipporah Njeri under the management of the Agents and the Respondent herein. I have also perused A purported receipt GMK 2 and found that it does not in explicitly show payment of rent to the Respondent. Therefore, the purported document is not sufficient proof to qualify the Applicant and Respondent in the definitions of a Tenant and Landlord as provided under section 2 of Cap 301.

15. I have carefully analyzed the parties’ submissions and all documents filed in this Tribunal. It is apparent that there is no evidence showing a tenancy agreement as established above. 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.”

16. The jurisdiction of BPRT Tribunal was aptly discussed in the case of Republic vs Business Premises Rent Tribunal & Another Ex- Parte Albert Kigera Karume [2015] eKLR which cited with approval the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195where the Court dealt with the provisions of section 12 of Cap 301 and stated as follows:

“The Tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied... The powers of the Tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the Tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the Tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the Tribunal, but merely states what the Tribunal may do within its area of jurisdiction…… It would be erroneous to think that section 12(4) confers on the Tribunal any extra jurisdiction to that given by and under the Act elsewhere…Section 12(4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the Tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy…. The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”.

17. This Tribunal derives its jurisdiction from the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. Having established that parties have not adduced evidence to show existence of a tenancy agreement which is a contested issue, I have no option but to down my tools as it was stated in the case of Owners of the Motor Vessel ‘Lillian” (s) versus Caltex Oil (Kenya) Ltd [1989] KLR1,as follows:

Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

26. With the above analysis, it is my finding that there being no landlord tenancy relationship, I hereby make the following orders;

i. The Applicant’s reference dated 17th June 2021and notice of motion Application dated 15th June 2021 are hereby dismissed.

ii. I exercise my discretion to grant the applicant 60 days from today within which to vacate the premises failure to which the Respondent will be at liberty to evict them with the assistance of the OCS Naivasha Police.

iii. Each party shall bear its costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 1ST DAY OF DECEMBER, 2021 IN THE PRESENCE OF WEIREGI FOR THE TENANT AND MACHARIA FOR THE LANDLORD.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL