[2022] KEBPRT 72 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E011 OF 2021 (KISUMU)

SELINE ANYANGO T/A

CELLY STAR ACADEMY............................................................................TENANT

-VERSUS-

MARY OKETCH T/A

GOSPEL MIRACLE & HEALING POWER CHURCH........1ST RESPONDENT

AND

CHARLES OGANA (CARETAKER).....................................2ND RESPONDENT

RULING

A. Parties and Representatives

1. The Tenant/Applicant, Seline Anyango is the proprietor of Celly Star Academy which allegedly rented space for the business (hereinafter known as the ‘tenant’);

2. The firm of M/S E.A. Ochieng & Company Advocates represents the Tenant in this matter. Email: elizabethakinyiochieng@yahoo.com.

3. The 1st Respondent/Landlord is the Landlord and owner of the suit premises occupied by Gospel Miracle & Healing Power Church and allegedly rented out to the tenants (hereinafter the Landlord).

4. The 2nd Respondent is employed as a caretaker for the premises occupied by Gospel Miracle & Healing Power Church.

5. The firm of M/S Gichaba & Company Advocates represent the 1st and 2nd Respondents in this matter. Email: info@gichabaadvocates.co.ke

B. The Dispute Background

6. On 26th August 2021 the Tenant moved this Tribunal by way of reference and a notice of motion application under certificate of urgency dated 27th August 2021 under Section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant sought, inter alia, that pending the hearing and determination of the application, the Tribunal be pleased to grant a temporary injunction restraining the Landlord by themselves, their agents and/or servants from interfering with the peaceful learning and occupation of CELLY STAR ACADEMY on the grounds that the Applicant, together with the pupils learning in the school operated by the Tenant would suffer irreparable and irredeemable loss if they are unable to access the school and miss out on the new curriculum being rolled out by the government.

7. On 1st September 2021, the Tribunal granted the interim order sought by the Tenant, restraining the Respondents, either by themselves, their agents and/or servants from interfering with the peaceful learning and occupation of Celly Star Academy pending the hearing and determination of the Application. The Tribunal further fixed the matter for interpartes hearing on 27th September 2021.

8. The matter came up for hearing on 27th September 2021, whereby it was ordered that a rent inspector visit the suit premises in order to determine the business being carried out and the status of the Tenant on the ground. Following these orders, inspection was carried out on 19th October 2021 and the Rent Inspection Report dated 21st October 2021 was placed in the file.

9. On 21st October 2021, the Respondents subsequently filed a preliminary objection on grounds that the Tribunal lacks jurisdiction to determine the notice of motion application as there subsisted no tenancy agreement, in writing or by implication, between them and the Plaintiff. The Tribunal ordered both parties to file submissions on the preliminary objection, the inspection report and the parent application.

C. Jurisdiction

10. The jurisdiction of this Tribunal is disputed.

D. The Tenant’s Claim

11. The Tenant filed a notice of motion application under certificate of urgency and supporting affidavit dated 26th August 2021 which pleadings form the basis of this claim.

12. The Tenant filed a further affidavit dated 25th October 2021 in support of their claim.

13. The Tenant obtained restraining orders against the Landlord on 1st September 2021, either by themselves, their agents and/or servants from interfering with the peaceful learning and occupation of Celly Star Academy, which orders are still operational to date.

14. Upon the entering of the Rent Inspector’s report, the Tenant was directed to file submissions, which submissions dated 19th November 2021 were filed with the Tribunal on 26th November 2021. The gist of the report is that the Tenant was at the time of inspection, not in occupation of the suit premises.

E. The Landlord’s Claim

15. The Respondents’ filed a preliminary objection dated 21st October 2021 on grounds that the Tribunal lacks jurisdiction to determine the notice of motion application as there subsisted no tenancy agreement, in writing or by implication, between them and the Plaintiff.

16. The Tribunal directed both parties to file submissions, and the Respondents’ submissions dated 18th November 2021 were filed on even date.

F. List of Issues for Determination

17. It is my contention that the sole issue for determination before this Tribunal is as follows;

a) Whether this Tribunal has the jurisdiction to hear and determine this matter?

G. Analysis and Findings

Whether this Tribunal has the Jurisdiction to hear and determine this matter?

18. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya (the “Act”) provides for the statutory establishment of the Business Premises Rent Tribunal. The limits of the jurisdiction exercisable by the Tribunal are also explicitly set out therein. Section 12 of the Act grants the Tribunal its jurisdiction and provides that;

A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—

(a) to determine whether or not any tenancy is a controlled tenancy;

19. Section 2 defines a controlled tenancyas;

“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;”

20. It goes without saying, that for there to exist a controlled tenancy, in addition to the requirements provided in the Act above, there must be a clear Landlord and Tenant relationship which is clearly defined according to the terms of the tenancy agreement or implied from their conduct.

21. Section 2 of Act defines a Tenant as;

“in relation to a tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding, and includes a sub-tenant”

22. The same section above defines a Landlord as;

“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”

23. In this case, the Tenant in her application avers that there exists a tenancy relationship between herself and the Respondent to run an ECDE school known as Celly Star Academy which is situate within the Church compound known as Gospel Miracle & Healing Power Church. There is no indication in the Tenant’s pleadings of the commencement date or the expiry date of the tenancy relationship.

24. In her further affidavit sworn on 25th October 2021, the Tenant avers that the tenancy relationship is implied from there being no opposition from the Landlord to her possession of premises, and the Landlord’s acceptance of rent. The Tenant showed her remittance of rent via M-Pesa Messages showing payments made to the 1st and 2nd Respondents of Kshs. 25,000. 00/-, Kshs. 2,000. 00 and Kshs. 3,000. 00on 29th December 2020, 12th January 2021and 17/2021 respectively, annexed to the affidavit.

25. The main question before this Tribunal is therefore whether this remittance of rent, and the occupation of the Tenant on the Church premises, suffices to prove existence of a Landlord/Tenancy relationship by implication. I do not think so. First, the Tenant’s rent payment receipts are not consistent for a long enough period to imply the existence of a periodic tenancy. Secondly, the Rent Inspectors’ report, which was prepared after an inspection was carried out in presence of representatives of both parties expressly indicated that the Tenant was not in occupation of the suit premises.

26. From the above, it is evident that a tenancy relationship has never subsisted between these two parties. This Tribunal cannot therefore establish the existence of a controlled tenancy. This in turn, takes away the Tribunal’s locus to adjudicate upon the issues raised in the application. The Tribunal must down its tools as it is not clothed with jurisdiction.

H. Orders

a) The Tenant’s reference dated 26th August 2021and notice of motion Application dated 27th August 2021 are hereby dismissed with costs.

b) The Landlord shall release the Tenant’s goods in storage by the landlord;

c) Landlord shall have costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 16THDAY OFFEBRUARY, 2022 IN THE PRESENCE OF NYAGOL MSFOR THERESPONDENT/LANDLORD,THE TENANTAND(EA OCHIENG ADV)NOW PRESENT.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL