[2022] KEBPRT 42 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 123 OF 2021 (NAKURU)

ROY PARCEL SERVICES LIMITED..........................APPLICANT/TENANT

VERSUS

JOHN WACHIRA.................................................RESPONDENT/LANDLORD

RULING

1. The tenant instituted this matter seeking for temporary injunction against the landlord from increasing the monthly rent in respect of the suit premises or demanding goodwill of Kshs.5 million pending hearing and determination of the complaint.

2. The landlord filed a notice of preliminary objection dated 4th October 2021 to the effect of preliminary objection dated 4th October 2021 to the effect that this court lacks jurisdiction to hear and determine the reference as well as the application dated 8th September 2021 in view of Section 2(1) of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301 Laws of Kenya. He further contends that the relationship herein does not qualify as a controlled tenancy and the suit is misconceived, scandalous, frivolous, vexatious and a blatant abuse of the due process of the law.

3. The preliminary objection was directed to be disposed of by way of written submissions and both parties complied.

4. I am required to determine two issues:-

(a) Whether this court has jurisdiction to hear and determine the suit.

(b) Who is liable to pay costs?

5. According to the landlord, Section 2 of Cap. 301 defines a controlled tenancy to mean a tenancy of a shop, hotel or catering establishment which has not been reduced into writing or which has been reduced into writing and which is for a period not exceeding five years or contains provision for termination otherwise than for breach of covenant within five (5) years from the commencement thereof.

6. The landlord contends that on 1st March 2016, a lease agreement was entered into for a period of five years and three months with the parties intention being to remove it from the ambit of a controlled to a non- controlled tenancy.

7. The lease was to expire by 31st August 2021 by effluxion of time and the landlord reserved the right to vacant possession of the premises. As such, it is submitted that the tenant cannot purport to enforce unlawful rights in a court of law that has no jurisdiction.

8. The landlord relies on the decisions in Dubai Bank Kenya Limited – vs- Insurance Company of East Africa Limited (2013) eKLR to buttress his point as well as the locus classicus case of Owners of Motor Vessel Lilian ‘S’ – vs- CaltexOil (k) Ltd (1989) KLR1 on the question of effect of lack of jurisdiction.

9. As such it is submitted that the application is incompetent and legally untenable in view of Cap. 301 which vests jurisdiction on the tribunal to settle disputes regarding controlled tenancies. The landlord finally cites the decision in the case of Alice Mweru Ngai – vs- Kenya Power & Lighting Co. Ltd (2015) eKLR on the need for courts to confine themselves within the parameters of their jurisdiction.

10. On the other hand, the tenant opposes the preliminary objection on grounds that the mere fact that a court or tribunal lacks jurisdiction to entertain a matter does not bar it from hearing and determining the issue of jurisdiction which ought to be determined in the initial stages of the proceedings. The tenant cites Section 9(2), (3) & (4) of the Fair Administrative Actions Act, 2015 whose reliance is not elaborated. I do not think the said section applies as this tribunal is not sitting in exercise of judicial review jurisdiction.

11. According to the tenant, this matter falls within the jurisdiction of this Tribunal as the lease agreement is for a period of five (5) years from 1st day of March 2016 to 1st June 2021 which accords with Section 2(1) of Cap. 301, Laws of Kenya.

12. According to the tenant, the three months extension was a goodwill given to the tenant to cement the working relations between the two parties which has been smooth to date. As such, the matter is rightfully before this Tribunal.

13. Although the Landlord did not file any affidavit annexing the lease agreement, I have seen the tenant’s annexture ‘MR0-1’ being the tenancy agreement over plot no. Barrot Block 3/9 (New), Old No. 8836/531 dated 1st March 2016. Under clause 2(g) thereof it states as follows:-

“……………To Hold the same unto the lessee for the term of five (5) years and 3 months from the 1st day of March 2016 to the first (1) day of June 2021 Yielding and paying therefore during the said term as follows:- (emphasis mine).

14. There is ambiguity in the said lease agreement in that whereas it clearly states that it is for 5 years 3 months, the last date is indicated to be 1st June 2021 which makes it a five (5) years lease thereby bringing it within the operations of section 2(1) of Cap. 301. It may be argued that the said clause has a mistake but this is a matter that ought to be clarified at the hearing of the reference.

15. In the case of Oraro – vs- Mbaja(2005) eKLR the superior court while dealing with what amounts to a preliminary objection had the following to say at page 3/8:-

“ I think the principle is abundantly clear. A preliminary objection, correctly understood is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not as a matter of legal principle a true preliminary objection which the court should allow to proceed”.

16. In view of the ambiguity on the date when the lease agreement was expected to terminate, I am unable to allow the preliminary objection as prayed by the landlord and shall escalate the matter for determination on the merits.

17. Consequently, I dismiss the preliminary objection with costs in the cause. The application dated 8th September 2021 shall therefore be fixed for directions with a view to its determination on the merits.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF FEBRUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mr. Waithaka for the Tenant/Applicant

Miss Kamau holding brief for Wachira for the Landlord.

Further order:

(1) Landlord to respond to the application in 14 days.

(2) Lease to file further affidavit granted to the Applicant within 14 days of service of the replying affidavit.

(3) Mention on 30th March 2022.

(4) Interim order extended till then.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

25/2/2022