[2021] KEBPRT 415 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 267 OF 2019 (MOMBASA)

PETER KIRUGI.........................................APPLICANT

VERSUS

SWALEH NGURUMBA.............................RESPONDENT

RULING

1. Before me is an application dated 31st March 2021 in which the Applicant is seeking for :-

(A) …………………………………………………………(spent)

(B) That this honourable court be pleased to cite the Respondent for contempt of court orders of 14th January 2021 and consequently be committed to jail for a period to be determined by this Tribunal.

(C) That this honourable court be pleased to issue an order of injunction to restrain the Respondent either by himself, officers, agents, employees, assigns or any person acting for him from visiting, invading and trespassing, terminating and /or interfering in any way with the Applicant’s tenancy on plot no. 3547 Kwale.

(D) That costs of this application be borne by the Respondent.

2. Although the question of jurisdiction has not been raised in this matter before me, it is my cardinal duty to interrogate the issue and satisfy myself before making any further step in line with the decision in the celebrated case of Owners of the Motor Vessel ‘Lillian S’ Vs Caltex Oil (Kenya) Limited [1989] eKLR where it was held at page 8- 9/27 as follows:-

“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.

Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:

“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

3. As was stated by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. ...”

4. The question which arises is whether this tribunal has jurisdiction to punish for contempt of court and the answer to the question is to be found in Section 12(1) & (2) of the Landlord and Tenant (Shops, hotels and catering establishments) Act, Cap. 301 which provides as follows:-

“12. Powers of Tribunals

(1) A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of thisAct, and in addition to and without prejudice to the generality of the foregoing shall have power—

(a) to determine whether or not any tenancy is a controlled tenancy;

(b) to determine or vary the rent to be payable in respect of any controlled tenancy, having regard to all the circumstances thereof;

(c) to apportion the payment of rent payable under a controlled tenancy among tenants sharing the occupation of the premises comprised inthe controlled tenancy;

(d) where the rent chargeable in respect of any controlled tenancy includes a payment by way of service charge, to fix the amount of such service charge;

(e) to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy;

(f) for the purpose of enabling additional buildings to be erected, to makeorders permitting landlords to excise vacant land out of premises of which, but for the provisions of this Act, the landlord could have recovered possession;

(g) where the landlord fails to carry out any repairs for which he is liable—

(i) to have the required repairs carried out at the cost of the landlord and, if the landlord fails to pay the cost of such repairs,to recover the cost thereof by requiring the tenant to pay rent to the Tribunal for such period as may be required to defray the cost of such repairs, and so that the receipt of the Tribunal shall be a good discharge for any rent so paid;

(ii) to authorize the tenant to carry out the required repairs, and to deduct the cost of such repairs from the rent payable to the landlord;

(h) to permit the levy of distress for rent;

(i) to vary or rescind any order made by the Tribunal under the provisions of this Act;

(j) to administer oaths and order discovery and production of documents in like manner as in civil proceedings before the High Court, to require any landlord or tenant to disclose any information or evidence which the Tribunal considers relevant regarding rents and terms or conditions of tenancies, and to issue summons for the attendance of witnesses to give evidence or produce documents, or both, before the Tribunal;

(k) to award costs in respect of references made to it, which costs may be exemplary costs where the Tribunal is satisfied that a reference to it is frivolous or vexatious;

(l) to award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent;

(m) to require a tenant or landlord to attend before the Tribunal at a timeand place specified by it, and if such tenant or landlord fails to attend, the Tribunal may investigate or determine the matter before it in the absence of such tenant or landlord;

(n) to enter and inspect premises comprised in a controlled tenancy in respect of which a reference has been made to the Tribunal.

(2) A Tribunal shall not have or exercise any jurisdiction in any criminal matter, or entertain any criminal proceedings for any offence whether under this Act or otherwise”.

5. Nowhere in the Act is the tribunal granted jurisdiction to punish for contempt of court or to enforce its own orders. In fact, the Tribunal is expressly prohibited from exercising criminal jurisdiction under Section 12(2) of the Act. It is trite law that contempt of court proceedings are quasi-criminal in nature and this Tribunal is expressly prohibited from trying it.

6. The Court of Appeal recently stated in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR as follows:-

“… Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary

jurisdiction. ...”

7. I find and hold that this tribunal has no jurisdiction to determine whether or not the Respondent is in contempt of its orders as such jurisdiction lies elsewhere.

8. On the prayer for injunction, I find that in view of the contention by the Applicant that he was evicted from the suit premises, it would be superfluous to issue another order which cannot restore him back to the demised premises. This Tribunal has no jurisdiction to restore a dispossessed tenant.

9. The upshot of my foregoing findings is that the application is dismissed for want of jurisdiction.

10. I shall not make any orders as to costs.

DATED, SIGNED AND DELIVERED THIS…………16TH …………..DAY OF……………………JULY………………………2021

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Oyas for the Tenant/Applicant

Otieno for the Respondent