[2020] KEBPRT 57 (KLR)
The Tribunal found that it lacked jurisdiction to determine disputes arising from the sale agreement, as its mandate is confined to landlord-tenant matters under Cap 301. The sale agreement was not completed, and the tenant did not become the owner of the premises. The lease expired on 31st December 2018, but the...
Source-derived case information.
- Citation
- [2020] KEBPRT 57 (KLR)
- Parties
- Applicant: Samuel Kaptalai Cheptoo; Applicant: Isaac Kiptayor Cheptoo; Applicant: Mariko Kiserich Limo; Respondent: David Cullen
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 149 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Landlord's Application
- Outcome
- Landlords' application allowed; tenant's preliminary objection dismissed.
- Legal Topics
- Controlled Tenancy, Jurisdiction of Tribunal, Periodic Tenancy, Distress for Rent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kaptalai Cheptoo
Applicant
Isaac Kiptayor Cheptoo
Applicant
Mariko Kiserich Limo
Applicant
David Cullen
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Landlord's Application
Legal Issues
- 1 Whether the Tribunal has jurisdiction to determine disputes arising from the sale agreement dated 4th June 2016.
- 2 Whether the relationship between the parties remains that of landlord and tenant after the sale agreement was not completed.
- 3 Whether the landlord is entitled to vacant possession and distress for rent without serving a termination notice under Cap 301.
Ratio Decidendi
The Tribunal found that it lacked jurisdiction to determine disputes arising from the sale agreement, as its mandate is confined to landlord-tenant matters under Cap 301. The sale agreement was not completed, and the tenant did not become the owner of the premises. The lease expired on 31st December 2018, but the tenant continued in occupation, thus becoming a periodic tenant at the same monthly rent. The use of the premises remained business-related, falling within the scope of Cap 301. The landlords had not served a termination notice as required under section 4(2) of Cap 301, so they were not entitled to vacant possession. However, the tenant failed to demonstrate payment of rent from...
Court Disposition
Landlords' application allowed; tenant's preliminary objection dismissed.
Orders
- Prayer 2 and 4 of the notice of motion dated 30th October 2019 are granted.
- The tenant shall pay the costs of the auctioneer.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 149 OF 2019 (NAKURU)
SAMUEL KAPTALAI CHEPTOO
ISAAC KIPTAYOR CHEPTOO
MARIKO KISERICH LIMO..................................LANDLORDS
VERSUS
DAVID CULLEN...............................................................TENANT
RULING
The Landlords in the above reference filed a reference under section 12(4) of Cap 301 and a notice of motion dated 30th October 2019 under a certificate of urgency seeking leave to levy distress and record outstanding arrears of rent of shs 300,000/- plus an order for vacant possession of the suit premises.
The Tenant/Respondent filed a notice of preliminary objection dated 6th November 2019 challenging the jurisdiction of the Tribunal to hear and determine the dispute. The Tenant also filed a replying affidavit sworn by David Cullen on 27th June 2020. The Advocates of the parties have made oral submissions which are on record. The dispute between the parties is more on issue of law than facts.
The following are the admitted facts.
1. The Tenant in the reference first took possession of the suit premises pursuant to the lease agreement dated 2nd January 2009 between him and Samuel Kiptalai Cheptoo. The suit premises is described as a 2 bedroom house at Kambi ya Samaki.
2. Upon expiry of the first lease agreement, the Tenant entered into another lease agreement dated 1st January 2014 with Samuel Kaptalai Cheptoo, Isaac Kiyator Cheptoo and Mariko Kiserich Kiptoo for another period of 5 years at the monthly rate of shs 10,000/-. The lease expired on 31st December 2018 and the parties have not entered into another lease agreement.
3. On 4th June 2016 the Tenant entered into a sale agreement with Samuel Cheptoo and Isaac Cheptoo for the sale of the suit premises for a sum of Kshs 100,000. The Tenant paid the renters shs 15,000/-.
4. The sale of the suit premises was not completed.
5. The Tenant continued to be in occupation of the suit premises.
The above facts are not in dispute. The Tribunal upon consideration of all the pleadings in this matter and upon consideration of the oral submissions of the advocates of the parties makes the following findings;
1. The Tribunal has no jurisdiction to hear and determine the dispute arising out of the sale agreement dated 4th June 2016.
2. The Tenant did not cease to be a Tenant of the Landlord by virtue of the sale agreement dated 4th June 2016.
3. The sale agreement dated 4th June did not refer to and/or invalidate the lease agreement dated 1st January 2014.
In any event, the sale agreement was not completed and the Tenant did not and has not become the owner of the suit premises.
4. The relationship between the Tenant and that of the Landlord herein is that of Landlord and Tenant within the meaning of section 2 Cap 301.
5. Upon expiry of the lease on 31st December 2018 the Tenant became a periodic tenant on the same monthly rent of shs 10,000/-.
6. There is overwhelming evidence on record to show that the use of the suit premises is that of a business and/or hotel as defined under Cap 301.
7. The Landlord has not served the Tenant with a notice to terminate the tenancy under section 4(2) of Cap 301 and they are not entitled to an order for vacant possession of the suit premises.
8. The Tenant has not demonstrated to the Tribunal that he has paid rent from 2017.
All in all the Tribunal is satisfied under the Tenant’s preliminary objection has no merits. The Tribunal allows the Landlord’s application dated 30th October 2019 and makes the following orders;
1. Prayer 2 and 4 of the notice of motion dated 30th October 2019 is hereby granted.
2. The Tenant shall pay the costs of the Auctioneer.
3. The order issued above shall be stayed for 30 days from the date of delivery of the ruling to enable the Tenant to comply.
4. The Tenant shall pay the Landlord costs of the application and other disbursements.
5. Costs shall be agreed or taxed by the Tribunal.
Ruling dated and delivered this 26thday of May 2020 in the presence of Mr Oloo holding brief for Wekhombafor the Tenant. Advocate for the Landlordabsent.
MBICHI MBOROKI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL