[2021] KEBPRT 389 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E034 OF 2021 (NAIROBI)

PETER NJAGI T/A

MWENDA NJAGI & COMPANY ADVOCATES..........TENANT/APPLICANT

VERSUS

MURUGA INVESTMENTS LTD....................LANDLORD/1ST RESPONDENT

PETER M. MWANGI T/A

CASH CROP AUCTIONEERS.................AUCTIONEERS/2ND RESPONDENT

RULING

The 1st Respondent/Landlord’s notice of preliminary objection has raised the following grounds;

1. That this honourable Tribunal has no jurisdiction to hear and determine this suit as the tenancy in question is not a controlled tenancy as defined under section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

2. That the suit ought to be struck out forthwith with costs to the 1st Respondent/Landlord.

When this matter came up for hearing on 17th May 2021, the parties were ordered to file written submissions for and against the preliminary objection. Both parties have filed their submissions. At the centre of this dispute, is the determination of the issue of jurisdiction.

The Landlord’s submissions may be summarized as follows;

1. That the lease between the parties herein is the one dated 9th May 2019. It is for a period/term of 5 years and 3 months. The lease agreement is annexed as GKK1 in the Landlord’s replying affidavit.

2. That in these circumstances, this Tribunal has no jurisdiction to hear and determine this dispute.

3. That the Tribunal has no powers to issue orders of injunctions.

4. That the Tenant’s allegation that the terms of the lease are matters of evidence that should await a full hearing is an allegation in ignorance of the Tribunal’s process and the governing statutory provisions.

5. That the Tenant has concealed a material fact that he has a tenancy/lease for five years and three months.

6. That the Tenant admittedly owes the Landlord rent.

The Tenant’s/Applicant’s submissions in opposing the preliminary objection may be summarized as follows;

1. That the Landlord’s preliminary objection is unmerited and should not be granted.

2. That it is trite law that preliminary objection should only be raised on clear points of law.

3. That the grounds relied upon by the Landlord consists of issues of facts.

4. That in order to determine whether or not the tenancy in question is a controlled tenancy evidence will have to be led as to the nature of the tenancy agreement between the parties herein.

5. That the preliminary objection will not be allowed where any facts have to be ascertained.

6. That the Applicant and the Respondent are in a controlled tenancy, the agreement between the parties being an oral one.

7. That the Applicant/Tenant has annexed receipts in payment of rent as evidence of the oral agreement between the parties.

8. The circumstances under which the dispute arose have been detailed at page 4 and 5 of the Tenant’s submissions.

9. That the Landlord has purportedly extracted the last page in the head of terms and attached it into the “disputed lease” backdated as 9th May 2019 and served on 18th November 2020. The said document is not a lease since there was no meeting of minds.

10. That the Tribunal has jurisdiction to hear and determine the dispute herein.

11. That there is no prejudice to be suffered by any party if the case is heard and determined on merit.

That being the summary of the parties/cases, in my humble view, the only issue for determination is whether this court has jurisdiction to hear and determine this dispute. I also have to determine in the process whether the tenancy herein is a controlled tenancy.

The jurisdiction of the Tribunal is confined to controlled tenancies. A controlled tenancy means a tenancy of a shop, hotel or catering establishment;

a. Which has not been reduced into writing or,

b. Which has been reduced into writing and which

i. Is for a period not exceeding five years or

ii.Contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof or

iii. Relates to premises of a class specified under subsection 2 of this section.

The lease annexed by the Landlord as exhibit GKK1 expresses itself to be for a period of five years and three months (1st May 2019 to 31st July 2024). I have perused the lease document and it does not contain a clause for termination otherwise that for breach of covenant within five years from the commencement thereof.

The Tenant has for his part, stated that the tenancy herein is a controlled tenancy, the agreement between the parties being an oral one. The Tenant further states that the evidence of the existence of this oral agreement is the receipt for the payment of rent for the month of May 2019. It is instructive to note that the lease annexed by the Landlord is dated 1st May 2019 and the Tenant also took possession of the premises on 1st May 2019.

The bone of contention in the preliminary objection as I understand it is whether the lease agreement between the parties herein was written or oral.

I have carefully read the submissions by both parties herein. The Tenant does not deny the signatures on the lease document to be his. The Landlord’s signature on the lease document is witnessed by M/S Karanja Wanyoike Advocates while the signature of the Tenant on the lease document is witnessed by J. M. Kamwendwa Advocate. These material particulars have not been denied by the Tenant. The lease document is therefore its own evidence, and I have no doubt that the same is written/in writing.

Under section 97(1) of the Evidence Act Cap 80 of the Laws of Kenya, it is provided;

“When the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act.”

The preliminary objection herein is challenging jurisdiction based on the term of the lease and does not challenge the existence of a Tenant/Landlord relationship between the parties herein. The term of the lease is five years and three months and therefore clearly outside the jurisdiction of the Tribunal.

The Tenant does not expressly deny the existence of the lease agreement but only alludes to changes made in the document. He has not denied the term of the lease and none of the matters raised by the Tenant would in my view change the written nature of the lease and the term thereof.

I therefore do find that the Tribunal has no jurisdiction to hear and determine this dispute and the Landlord’s notice of preliminary objection dated 7th May 2021 is allowed with costs to the Landlord.

Landlord’s costs are assessed at Kshs 20,000/-.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 3rd day of August 2021 in the presence of Mr Githae for the Tenant and Ng’ang’a for the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL