[2025] KEBPRT 148 (KLR)

Omega Fire Ministries International-Kenya v Paragon Property Consultant Ltd (Tribunal Case E1044 of 2024) [2025] KEBPRT 148 (KLR) (3 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 148 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1044 of 2024

J Osodo, Chair & Gakuhi Chege, Member

February 3, 2025

Between

Omega Fire Ministries International-Kenya

Applicant

and

Paragon Property Consultant Ltd

Respondent

Ruling

1. Before considering the merits of this case, an issue of jurisdiction arises as follows; -1. The tenant/applicant moved this tribunal vide a notice of motion under Section 12 (1), 12 (4), 4, 6 and 9 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 dated 23rd September 2024 seeking that the respondent/landlord be restrained from interfering with the tenant’s quiet occupation and lawful enjoyment of worship at the suit premises on 3rd floor, constructed along Shimo La Tewa Road industrial area.2. The tenant/applicant also seeks that the tribunal’s appointed officers to assess the suit premises, determine the rent payable and that the tribunal directs the tenant to pay rent as prescribed in the previous lease agreement.3. The tenant/applicant in his supporting affidavit dated 23rd September 2024 deposes as follows in paragraphs 2, 3 and 4; -“2. That the Applicant/Tenant herein is a faith organized group, the head quarter of Omega Fire Ministries International-Kenya with over 10 branches within Kenya, 89 within and without Africa and the mother church is based in Nigeria.3. That the church was inaugurated in Kenya by our spiritual father Apostle Johnson Selman and I was given the mandate to spearhead the spread of good news of Jesus Christ in Kenya.4. That since the opening of the Kenyan branch, we have managed to open subsidiaries in an effort to spread the gospel, our efforts have borne fruits and many people have since joined the church.”

2. The Tribunal’s jurisdiction is conferred by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301, Laws of Kenya in respect of controlled tenancies.

3. The applicant herein is a church as stated above and according to the Oxford Advanced Dictionary, a Church is defined as follows: -“A Christian house of worship, a building where Christian religious services take place”

4. It is therefore clear that the user of the suit premises is neither “a shop, hotel nor catering establishment” within the meaning and interpretation of Section 2(1) of Cap. 301, Laws of Kenya and this Tribunal lacks jurisdiction to adjudicate over the instant dispute.

7. Although the issue of jurisdiction with regard to the tenant being a church has not been raised by either party before us, we are entitled to consider it on our own motion at any stage of the proceedings in line with the Court of Appeal decision in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR where it was stated as follows: -“Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties. This much was appreciated by this Court in Adero & Another vs. Ulinzi Sacco Society Limited [2002] 1 KLR 577, as follows;1)........2)The jurisdiction either exists or does not ab initio …3)Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.4)Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.”

8. Consequently, this Tribunal has no option but to down its tools in line with the Locus Classicus case of Owners of Motor Vessel “Lillian S” – vs- Caltex Oil (Kenya) Ltd (1989) eKLR where it was held as follows at pages 8-9/27: -“.... I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

9. We therefore find and hold that this Tribunal has no jurisdiction to hear and determine the instant dispute and the same is a candidate for striking out. The interim orders given in the matter having been issued in error ought to be discharged/set aside forthwith.

Orders 10. In conclusion, the following final orders commend to us;a.This matter is struck out for want of jurisdiction and all interim orders are discharged.b.The tenant is at liberty to file the matter in the appropriate forum.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 3RD DAY OF FEBRUARY 2025. HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON. GAKUHI CHEGE(PANEL MEMBER)Ruling delivered in the presence of; -Ms. Wairimu holding brief for Mr. Macharia for the respondent.Kitur holding brief for Mr. Biketi for the applicant.