[2022] KEBPRT 31 (KLR)
The Tribunal found that, despite the lease being for a period exceeding five years, the presence of a termination clause allowing either party to terminate the tenancy by giving one month's notice or payment in lieu thereof brings the tenancy within the definition of a controlled tenancy under section 2(1) of Cap...
Source-derived case information.
- Citation
- [2022] KEBPRT 31 (KLR)
- Parties
- Applicant: Sayed Abdul Satar; Respondent: Sharrifa Said Abdulrehman; Respondent: Fatma Mohamed Ahmed
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 132 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Tribunal Jurisdiction
- Outcome
- preliminary objection dismissed; tribunal affirms jurisdiction
- Legal Topics
- Controlled Tenancy, Jurisdiction of Tribunal, Lease Agreements, Termination Clauses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sayed Abdul Satar
Applicant
Sharrifa Said Abdulrehman
Respondent
Fatma Mohamed Ahmed
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Tribunal Jurisdiction
Legal Issues
- 1 Whether the tenancy between the parties qualifies as a controlled tenancy under section 2(1) of Cap 301.
- 2 Whether the Tribunal has jurisdiction to hear and determine the dispute based on the nature of the tenancy.
Ratio Decidendi
The Tribunal found that, despite the lease being for a period exceeding five years, the presence of a termination clause allowing either party to terminate the tenancy by giving one month's notice or payment in lieu thereof brings the tenancy within the definition of a controlled tenancy under section 2(1) of Cap 301. The Tribunal therefore has jurisdiction to hear and determine the dispute. The preliminary objection by the respondents, which was based solely on the duration of the lease, was dismissed as the termination clause is a qualifying factor for controlled tenancy status.
Court Disposition
preliminary objection dismissed; tribunal affirms jurisdiction
Orders
- The respondent's notice of preliminary objection dated 8th July 2021 is dismissed with costs to the tenant.
- The application dated 8th June 2021 will proceed by way of written submissions; parties have twenty-eight days to file and exchange submissions.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 132 OF 2021 (MOMBASA)
SAYED ABDUL SATAR................................TENANT/APPLICANT
VERSUS
SHARRIFA SAID ABDULREHMAN
FATMA MOHAMED AHMED.....LANDLORDS/RESPONDENTS
RULING
1. This Respondent’s notice of preliminary objection dated 8th July 2021 is primarily to the effect that this Tribunal lacks the jurisdiction to hear and determine the application dated 8th June 2021 as well as the reference filed by the Tenant on 8th June 2021. The reason for the objection is that there exists a lease between the parties for a period of five years and three months which period exceeds the time limit for the Applicant to be considered a protected Tenant under section 2(1) of Cap 301.
2. The lease agreement referred to in the notice of preliminary objection is the one also referred to in the affidavit of the Tenant/Applicant and marked as SAS – 1. The lease is for a period of five (5) years and three (3) months commencing from 1st October 2018 to December 2023. Clause 2(8) of the lease agreement provides as follows;
“This tenancy agreement may be terminated by either party on serving a one (1) calendar month notice of termination in writing to the other or surrendering one (1) month rent in lieu of the said notice.”
3. The issue for determination is whether the tenancy between the parties is a controlled tenancy or not and whether the Tribunal therefore has jurisdiction to hear and determine the dispute between the parties.
4. Under section 2(1) of Cap 301, a controlled tenancy has been defined as follows;
“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.
Provided that no tenancy to which the government the community or a local authority is a party whether as Landlord or Tenant shall be a controlled tenancy.
5. A reading of the above section of Cap 301 and clause 2 (g) of the lease agreement between the parties clearly brings the lease agreement between the parties within the definition of a controlled tenancy.
6. I have read the submissions of the counsel for the Tenant/Applicant and I am in agreement with the views and conclusions expressed therein. Having come to the conclusion that the tenancy between the parties is a controlled tenancy, the Respondent’s notice of preliminary objection dated 8th July 2021is hereby dismissed with costs to the Tenant.
a. The application dated 8th June 2021will proceed by way of written submissions. Parties have twenty-eight days to file and exchange their submissions.
b. Matter be mentioned on 16th December 2021.
c. Interim orders are extended.
HON CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
05. 11. 2021
RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 7TH DAY OF MARCH 2022 IN THE ABSENCE OF THE PARTIES.
HON CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL