[2021] KEBPRT 90 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. E466 OF 2021 (NAIROBI)

OROKISE SACCO LIMITED.......................TENANT/APPLICANT

VERSUS

GODFREY MWATHI MEPUKORI....LANDLORD/ RESPONDENT

RULING

A. Parties and Representatives

1. The Applicant Orokise Sacco Limited is the Tenant and rented space on LR No. Ngong/Ngong/54357 situated within Ongata Rongai Nairobi for the business (hereinafter known as the ‘Tenant’)

2. The firm of Mwangi Wahome Co. Advocates represent the Tenant/Applicant in this matter. info@mwangiwahome.com

3. The respondent is the Landlord and proprietor of the suit situated within Ongata Rongai Nairobi rented out to the Tenants (hereinafter the Landlord).

4. The firm of Munyeki Githaiga & Associate Advocates represent the Landlord/Respondent in this matter. munyekigithaiga.advocates@gmail.com

B. The Dispute Background

5. On 1st August 2019, the Landlord and the Tenants entered into lease agreement in respect of the suit premises. The terms of the agreement were that the Tenant would occupy the suit premises for a period of 2 years, commencing on 1st August 2019to 1st August 2021, at an agreed rent as provided in the lease.

6. On 26th August 2021 the Tenant moved this tribunal by way of reference and notice of motion under certificate of urgency filed under Section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Landlord was seeking amongst other orders that pending the hearing and determination of the reference that the Tribunal order the respondents be restrained by themselves, their employees, and/or agents from evicting the Tenants from the suit property. Further the Tenants sought to be allowed to deposit rent with the Tribunal.

7. On 1st September 2021 the Tribunal ordered that the Respondents be restrained by themselves, their employees, and/or agents from evicting the tenant.

C. Jurisdiction

8. The jurisdiction of this Tribunal is in dispute.

D. The Tenant’s Claim

9. The Tenant filed a reference and a notice of motion application dated 27th August 2021.

E. The Landlord’s Claim

10. The Landlord filed a replying affidavit, notice of preliminary objection and grounds of opposition dated 24th September 2021.

11. Parties have filed written submissions and the matter was fixed for ruling on 16th December 2021.

F. List of Issues for Determination

12. It is the contention of this Tribunal that the issues raised for determination are as follows;

a. Whether this Honourable Court has jurisdiction to hear and determine this matter?

G. Analysis and Findings

Whether this Honourable Court has jurisdiction to hear and determine this matter?

13. The jurisdiction of this Honorable court is limited to Controlled Tenancies as provided for under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya.

14. From a clear reading of the lease agreement between the parties it provides that the lease was for a period of 2 years commencing 1st August 2019 to 1st August 2021. Thus it was a controlled tenancy within the definition of the act.

15. Prior to the expiration of the lease agreement the Landlord communicated to the Tenant through a letter dated 26th January 2021which the Tenant has attached to their application, that upon the expiration of the said period they did not intend to renew the same agreement.

16. The Landlord has also averred that since the expiration of the lease they have not accepted any rent from the Tenant as evidenced by the correspondences between the Landlord and the Tenant and this is one of the reasons that the Tenant sought to be allowed to deposit rent payments with the Tribunal.

17. From the annexed letter of the tenant dated 2nd February 2021the advocates for the Tenant wrote a letter to the Landlord stating that upon the expiry of the term of the lease they were not opposed to vacating the premises as long as the landlord accorded them 90 days to do so.

18. Section 4(5) of Cap 301 provides that;

“ A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice”

19. From the above provision, it is required that a receiving party who does not wish to comply with a notice issued should inform the requesting party within one month of their intention or lack of it thereof to comply with the notice. In this case the Tribunal observes that after receipt of the letter from the Landlord, the Tenant did not communicate of their opposition of the notice within one month as per the above provision neither did they file a reference.

20. Further the current reference filed in the Tribunal was filed on 23rd of August 2021 long after the expiry of the lease on 1st of August 2021. Section 6(1) reads

A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party undersection 4(5) of this Act that he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take effect, refer the matter to a Tribunal, whereupon such notice shall be of no effect until, and subject to, the determination of the reference by the Tribunal:

Provided that a Tribunal may, for sufficient reason and on such conditions as it may think fit, permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this section.

21. In light of this, the reference was filed out of time and the Tenant did not make an application to the Tribunal for extension of time or for their reference to be deemed as duly filed.

22. In addition, since the lease agreement between the two parties had clearly expired by effluxion of time and the same has not been renewed, ordinarily as per the provisions of section 2, the tenancy would be reduced to a tenancy not in writing premised upon the conduct of the parties.

23. In this case however the Tribunal is not convinced that the conduct of the landlord and the Tenant facilitated the subsistence of the tenancy relationship. On the contrary, the refusal by the Landlord to accept rent from the tenant shows that the Landlord did not intend to keep the relationship alive. Further it is the observation of the Tribunal that at the time of instituting this suit the tenancy agreement had expired by effluxion of time and the intent of the Landlord had clearly been communicated to the Tenant.

24. Based on the foregoing, the Tribunal cannot sufficiently establish a tenancy relationship between the Landlord and the Tenant in addition there is no valid reference before this Tribunal for this two reasons the Tribunal is ripped off the jurisdiction to hear and determine this matter.

25. Orders

a. The Landlord’s notice of preliminary objection dated 24th September 2021 is hereby upheld.

b. The Tenant’s reference and application dated 27th August 2021 are dismissed with costs.

c. The Tenant shall pay any accrued rent arrears owed to the Landlord for the occupancy of the premises during the pendency of this suit.

d. The Tenant shall vacate within 45 days, i.e. end of January 2022.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 16thday ofDecember, 2021 in the presence of Githaiga for the Landlord and Gachugifor Ambani for the Tenant.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL