[2023] KEBPRT 1144 (KLR)
The Tribunal found that the lease agreement between the parties was for a period of five years and three months, as evidenced by the lease document annexed by the landlord. The Act (Cap 301) defines a controlled tenancy as one not exceeding five years or containing a provision for termination otherwise than for...
Source-derived case information.
- Citation
- [2023] KEBPRT 1144 (KLR)
- Parties
- Applicant: Peter Njagi t/a Wamu Hardware; Respondent: Yasmin Ahmed; Respondent: Mariam Ahmed; Respondent: Nairobi Homes
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E118 of 2023
- Procedural Posture
- Preliminary Objection / Ruling on Jurisdictional Objection
- Outcome
- preliminary objection upheld; tribunal lacks jurisdiction; matter dismissed with costs to landlord
- Judges
- P May
- Legal Topics
- Controlled Tenancy, Jurisdiction of Tribunal, Lease Term Limits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njagi t/a Wamu Hardware
Applicant
Yasmin Ahmed
Respondent
Mariam Ahmed
Respondent
Nairobi Homes
Respondent
Procedural Posture
Preliminary Objection / Ruling on Jurisdictional Objection
Legal Issues
- 1 Whether the Business Premises Rent Tribunal has jurisdiction over a tenancy exceeding five years.
- 2 Whether the lease agreement between the parties constitutes a controlled tenancy under Cap 301.
Ratio Decidendi
The Tribunal found that the lease agreement between the parties was for a period of five years and three months, as evidenced by the lease document annexed by the landlord. The Act (Cap 301) defines a controlled tenancy as one not exceeding five years or containing a provision for termination otherwise than for breach within five years. Since the lease exceeded five years and did not contain such a termination clause, it fell outside the definition of a controlled tenancy. Consequently, the Tribunal lacked jurisdiction to hear and determine the dispute. The preliminary objection was therefore upheld, and the matter was dismissed with costs to the landlord.
Court Disposition
preliminary objection upheld; tribunal lacks jurisdiction; matter dismissed with costs to landlord
Orders
- The landlord's notice of preliminary objection dated 30th May, 2023 is allowed.
- The Tribunal has no jurisdiction to hear and determine this dispute.
Full Case Text
Judgment text and source record
31 paragraphs
Peter Njagi t/a Wamu Hardware v Ahmed & 2 others (Tribunal Case E118 of 2023) [2023] KEBPRT 1144 (KLR) (Civ) (24 November 2023) (Ruling)
Neutral citation: [2023] KEBPRT 1144 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Civil
Tribunal Case E118 of 2023
P May, Member
November 24, 2023
Between
Peter Njagi t/a Wamu Hardware
Tenant
and
Yasmin Ahmed
1st Landlord
Mariam Ahmed
2nd Landlord
Nairobi Homes
3rd Landlord
Ruling
1. The Landlord’s/Respondent’s notice of preliminary objection dated 30th May, 2023 challenges the jurisdiction of this Tribunal to hear and determine this matter for the reasons;a.The term of the tenancy was for a period of five years three months and therefore does not fall within the definition of controlled tenancies as set out under section 2 (1) (b) (11) of Cap 301.
2. The Landlord’s preliminary objection was filed in response to the Reference dated 16th May, 2023 and the attendant application filed on an even date. The parties elected to canvass the preliminary objection by way of written submissions.
3. I have considered the application, affidavits and the submissions on record and would proceed as follows:
Landlord’s position ; 4. The Tribunal has no jurisdiction on leases exceeding five years. The Tenant/Respondent has acknowledged the existence of a lease for five years and two months.
5. It is an established principle that jurisdiction is everything.
6. The Act, Cap 301, at section 2 (1) (b) is in clear terms and leaves nothing to inference.
The Tenant’s position 7. The landlord arbitrarily increased the rent and seeks to increase the same further without following the laid down procedure under CAP 301. The actions by the landlord are detrimental to them.
Analysis 8. It is not in contention that the parties entered into a written lease agreement executed on 2nd September, 2022 . The issue for determination that arises therefore is, what is the nature of the relationship between the parties created by dint of the lease agreement?
9. Under section 2(1) 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 orii.Contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof oriii.Relates to premises of a class specified under subsection (2) of this section.
10. The lease annexed by the Landlord as exhibit FM1 expresses itself to be for a period of five years and three months. 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 preliminary objection herein is challenging jurisdiction based on the term of the lease. The term of the lease is five years and three months and therefore clearly outside the jurisdiction of the Tribunal.
11. 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 30th May, 2023 is allowed with costs to the Landlord.Landlord’s costs are assessed at Kshs 15,000/-.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF NOVEMBER 2023. HON. PATRICIA MAYMEMBER24. 11. 2023