[2022] KEBPRT 204 (KLR)

Sebarinda v Munga Holdings Limited (Tribunal Case E117 of 2021) [2022] KEBPRT 204 (KLR) (18 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 204 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E117 of 2021

P May, Vice Chair

July 18, 2022

Between

Chris Bosco Sebarinda

Applicant

and

Munga Holdings Limited

Respondent

Ruling

1. The application before me is the tenant’s application dated December 8, 2021 which sought for orders of temporary injunction and an order invalidating the notice to vacate that had been issued by the respondent. The application is premised on the grounds on the face of the application and reasons set out in the supporting affidavit sworn on even date whose contents will be summarized hereunder:

2. The applicant states that he took possession of the demised premises sometimes in 2012 after he entered into a gentleman’s’ agreement with the owner one Stanley Munga Githunguri. He says that the lease was largely informed by the need to repulse the squatters who had made unsuccessful attempts to occupy the demised premises.

3. The applicant further states that he took possession of the demised premises and commenced business activities whereby he enjoyed quiet and peaceful possession until sometimes in 2020 when Lilian and Rosemary approached him that the owner of the premises had been taken ill and they had the power to administer the property.

4. The applicant contends that he made attempts to contact the owner of the demised premises but his efforts were futile. He was therefore forced to enter into an agreement with the said representatives of the owner.

5. The applicant has informed the Tribunal that the advent of the novel Covid 19 pandemic had adverse effects on his business thus he fell into rent arrears. He states that he notified the respondent of the prevailing business situation but they were hellbent on ensuring that he was evicted.

6. The application was opposed vide the notice of preliminary objection dated January 4, 2022 and the detailed replying affidavit dated 6/1/2022.

7. The landlord avers that this Tribunal is not clothed with the jurisdiction to hear and determine the application and complaint.

8. The parties elected to canvass both the application and the preliminary objection by way of written submissions. I have considered the application, the affidavits and submissions on record thus would proceed as follows:

9. The two issues for determination are whether the Tribunal is clothed with the jurisdiction to dispense with the dispute and the merits of the prayers sought.

10. The jurisdiction of this Honorable Tribunal is limited to controlled tenancies as provided for under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301 Laws of Kenya.

11. Section 2 of the Act defines a controlled tenancy 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.”

12. In the present application , the main issue is whether or not the tenancy relationship between the Landlord and the Tenant qualifies as a controlled tenancy and therefore subject to the jurisdiction of this honourable Tribunal.

13. The application by the applicant dated December 8, 2021at paragraph 7 states that the applicant entered into a valid lease agreement with the respondent for the lease of the demised premises. The tenant has however disputed the validity of the same stating that the authority of the representatives has been challenged and is subject to litigation.

14. The parties however agree that the lease agreement is for a period of 6 years without a break clause. The effect of this is that if the lease is valid and binding, then the Tribunal will have to down its tools as it will be stripped of the jurisdiction to deal with the present dispute any further.

15. The tenant has buttressed his position that the agreement was not binding on the basis of an ongoing case where the authority of the representatives is contested. The question on whether the respondents had the authority to enter into a lease agreement is not one to be determined by the Tribunal.

16. Section 2 of cap 301 defines a landlord as ;“landlord”, in relation to a tenancy, means the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy;

17. Based on the above definition, it is then not in dispute that the respondent was the landlord to the applicant. Unless otherwise ordered by the court, they had the authority to enter into a binding contract with the applicant. The applicant has made subtle attempts to plead that he was coerced to enter into the contract but he has not stated any acts that constituted coercion.

18. Having made the above findings, I am inclined to allow the Landlord’s notice of preliminary objection dated 4/1/2022.

19. The application and the complaint are therefore dismissed with no orders as to costs.It is so ordered.

RULING SIGNED, DATED AND DELIVERED THIS 18TH DAY OF JULY 2022. HON. P. MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the absence of the parties.