[2024] KEBPRT 402 (KLR)

Njenga v Karama (Tribunal Case E205 of 2023) [2024] KEBPRT 402 (KLR) (16 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 402 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E205 of 2023

N Wahome, Member

January 16, 2024

Between

Catherine W Njenga

Applicant

and

Asad Karama

Respondent

Ruling

1. This is a thoroughly conflicted matter where the Tenant terminated her relationship with the landlord and which the landlord agreed to but is now blowing cold and hot on the interventions she would need from this court.

2. In her reference dated 23. 8.2023, the Tenant claims that the landlords had refused to refund the rent deposit paid to them at Kshs. 170,000/= after termination of the tenancy. That they had also withheld some of her goods.

3. The Tenant claimed that when she accessed the demised premises, she found it dilapidated and undertook repairs that cost her Kshs. 600,000/= and Kshs. 120,000/= totaling to Kshs. 720,000/=.

4. That despite carrying out the repairs and/or renovations aforesaid, she realized that the landlords were using thedemised premises as a dumping site and that raw sewerage was flowing freely and therefore found the conduct of her business at the site untenable.

5. It was the contention of the Tenant that she tried to have the landlords intervene on all those issues but that they were indifferent and she therefore decided to terminate the tenancy.

6. The Tenant then prays that the landlords be ordered to allow her unhindered access to the demised premises or that she be authorized to break into the same under the supervision of the OCS Kongowea police station. She also seek that restraining orders be issued against the landlords from in anyway interfering with her tenancy or goods.

7. Finally, the Tenant sought for an order for recovery of the Kshs. 170,000/= paid as rent deposit to the landlords.

8. The reference was accompanied by a notice of motion dated 23. 08. 2023 brought under certificate of urgency. It replicated the prayers as in the reference.

9. The landlords on their part filed a replying affidavit sworn on the 13. 10. 2023 by Saheem Ahmed Salim Karama. His dispositions in the said affidavit were that:-a.Him and Asad Karama were not landlords to the Applicant and that their fathers were. He annexed a Tenancy agreement dated 2. 5.2023 to show that the same was between the Applicant on the one part and Ahmed Salim Karama and Salim Karama on the other part.b.The landlords gave the Tenant a grace period of May and June, 2023 to modify the demised premises to meet her needs and the Tenancy was to commence in July 2023. To that end, the Tenant paid a deposit of Kshs. 50,000/= being rent for July, 2023 leaving a balance of Kshs. 35,000/= which remains unpaid.c.That by a whatsapp message purportedly dated 30. 7.2023 but which was infact issued on the 30. 6.2023, the Tenant indicated her intention to terminate the tenancy herein. The landlords through their Advocates M/S Akanga Aleru & Associates through the letter dated 6. 7.2023 accepted the termination by the Tneant on the condition that the deposit of Kshs. 170,000/= would be applied for the two months in lieu of notice and also required the Tenant to pay the balance of Kshs. 35,000/= in rent for the month of July.d.The Tenant does not seem to have responded to this letter nor contested the contents therein and it would be assumed that she was in concurrence.e.The Tenant does not disclose what properties she left at the demised premises and the landlords denied the existence of such items therein.f.All the renovations to be carried out by the Tenant and installations thereof to suit her business would be at her cost as per the agreement.

10. I have looked at the further affidavit by the Applicant sworn on the 7. 11. 2023 and the same has done little to help the Applicant’s case. She wants to be allowed access to the demised premises to restore the same to its original status, be refunded her deposit of Kshs. 170,000/= and also be allowed to remove her unidentified properties from the demised premises.

11. Having perused all the materials on record including the landlords submissions and those of the Tenant, I am persuaded that there are only two issues that require my determination:-a.Whether this court has jurisdiction over this matter.b.Who should bear the costs of this suit.

Issue No. A: Whether this court has jurisdiction over this matter 12. The Tenancy agreement herein was between the Applicant on the one part and Ahmed Salim Karama and Ali Salim Karama of the other part. The purported landlords herein namely Saheem Ahmed Salim Karama and Asad Karama were not party to the agreement dated 2. 5.2023.

13. When the Applicant gave the notice dated 30. 6.2023 to terminate the tenancy, the response accepting the termination was by Ahmed Salim Karama and Ali Salilm Karama through their Advocates M/S Akanga Alera & Associates. It therefore defeats logic as to why the Applicant had to drag the Respondents into this matter.

14. The Applicant also never offered any evidence that the demised premises were owned by the Respondents nor that she ever paid the rent deposit at Kshs. 170,000/= and the partial rent for July, 2023 at Kshs. 50,000/=to them.

15. It then follows that there was never a tenancy agreement nor such relationship as envisaged under Section 2(1) of the Landlord and Tenant (shops, hotels and catering Establishments Act) Cap 301 of the Laws of Kenya hereinafter referred to as “the Act” between the Applicant and the Respondents.

16. That relationship was between the Applicant on the one part and Ahmed Salim Karama and Ali Salim Karama of the other part. The same was however terminated at the instigation of the Applicant herself.

17. This is therefore to say that this court has no jurisdiction to preside over this matter as there exists no Landlord and Tenant relationship. The relationship that subsisted at one point was that between the Applicant and Ahmed Salim Karama jointly with Ali Salim Karama pursuant to the tenancy agreement dated 2. 5.2023 and which was terminated effective the 30. 7.2023 at the behest and instigation of the Applicant.

18. In the celebrated case of; Pritam v Ratilal & Another [1972] EA page 560 the court had this to say;-“Therefore, the existence of the relationship of Landlord and Tenant is a pre-requisite to the applications of the provisions of the Act. Where such a 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 the Tribunals, 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.

19. In Judicial Review case No. 25 of 2012 at Mombasa; Republic v The Chairman Business Premises Rent Tribunal & Italian Gelati (K) Ltd. The Court held that;“The tenancy had been terminated and there was no tenancy capable of being preserved by the Tribunal. There was no longer a landlord-tenant relationship and so the Tribunal acted without jurisdiction. The proper forum for the 1st Respondent’s grievances was a Civil court. That is where it should have sought intervention. The order made by the Tribunal is therefore amenable to an order of certiorari and any further proceedings pending before it can be stopped by a prohibitory order.”

20. The court further emphasized the position by holding that:-“Then there was evidence that the premises were indeed empty. It may not have been unreasonable for the auctioneer to handover possession of these empty premises to its owners, the Applicant. If, however, the interested party is of the strong view that the conduct of the Applicant was unlawful, then it is not without a remedy. The Interested party can invoke the Civil process.”

21. The import here is categorical that there is no relationship between the parties herein as envisaged by the Act and the reference and the notice of motion herein must fail.

Issue B: Who should bear the costs of this suit 22. It is apparent that the Applicant has made very and/or rather poor commercial decisions from the materials on record and from that she has suffered serious losses that could be avoided. For those reasons and taking into account the improvements injected into the demised premises and money paid as rent deposit and partial rent for July, 2023, I would determine that each party bears own costs.

23. The upshot of all this is that, I make the following orders:-a.That the reference and notice of motion both dated 23. 8.2023 are dismissed.b.Each party shall bear own costs.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY ON THE 16TH DAY OF JANUARY 2024 AT NAIROBI.HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Mr. Ahmed holding brief for Mr. Akanga for the landlordCatherine W. Njenga- the tenant present in person