[2021] KEBPRT 435 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E018 OF 2021 (NAIROBI)

STEVE GITAU......................................TENANT/APPLICANT

VERSUS

BANTER ATIENO MWALO.....LANDLORD/RESPONDENT

RULING

The Landlord’s/Respondent’s notice of preliminary objection dated 28th April 2021 challenges the jurisdiction of this Tribunal to hear and determine this matter for the reasons;

1. That the tenancy for shop numbers G3 on Mwabe apartments was reduced into writing and therefore does not fall within the definition of controlled tenancies under section 2(1)(a) of Cap 301 of the Laws of Kenya.

2. The terms of the tenancy aforesaid was for a period of five years two months and therefore does not fall within the definition of controlled tenancies as set out under section 2 (1) (b) (11) of Cap 301.

3. The tenancy agreement does not contain a clause for termination within five years from the commencement of the tenancy and therefore do not fall within the definition of controlled tenancies.

The Landlord’s preliminary objection came up for hearing on 18th May 2021 when the parties submitted orally. The brief submissions of the parties may be summarized as follows;

Landlord’s submissions were to the effect that;

1. The Tribunal has no jurisdiction on leases exceeding five years.

2. The Tenant/Respondent has acknowledged the existence of a lease for five years and two months.

3. Jurisdiction is everything.

4. The Tenant confirms that the lease has expired and therefore cannot rely on it.

5. The Act, Cap 301, at section 2 (1) (b) is in clear terms and leaves nothing to inference.

6. The tenancy between the parties is being terminated as per the law.

The Tenant’s submissions were to the effect;

1. That the Tenant has responded to the preliminary objection by his affidavit dated/sworn on 12th May 2021.

2. The lease the basis of the preliminary objection does not exist, it expired on 10th October 2019.

3. The court cannot presume the continued tenancy is on the basis of the expired lease.

4. That tenancies are not based on written agreement only.

5. That the expired lease was never renewed and does not govern the parties anymore.

6. The tenancy relationship continued based on the conduct of the parties.

It is an agreed fact that the written lease agreement between the parties herein expired on or about 10th October 2019. The issue for determination that arises therefore is, what is the nature of the relationship between the parties after the lease agreement expired?

As late as 1st March 2021, the Landlord recognized the Tenant herein as being in occupation of the demised premises. That can be the only reason the letter dated 1st March 2021 was written to the Tenant by the Landlord. that is clearly after the written lease expired in 2019. The Tenant has also stated that after the expiry of the written lease agreement, he has remained in occupation and the Landlord has continued to receive rent. The Landlord does not deny receiving the aforesaid rent. From the annextures in the Tenant’s affidavit, I am satisfied that the Landlord continued to receive rent from the Tenant after the lease between the parties had expired.

The agreement/lease having expired, the continued stay of the Tenant upon the demised premises past the expiry of the written lease could only have been on the basis of an unwritten lease agreement. Under section 2(1) a 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.

To be sure, the written lease (now expired) placed the parties herein outside the jurisdiction of the Tribunal. The lease having expired and the parties having continued to honour their respective obligations as Landlord and Tenant respectively, they could only have been acting on the basis of an unwritten lease. The Applicant had become a periodic Tenant. I am in agreement with the holding in Ukwala Supermarket (Eldoret) Ltd Vs Amritral Sujpar Shah Wholesalers Ltd (2017) eKLR where the court held;

“In conclusion, I do find that since the agreement between the Plaintiff and the Defendant was not reduced into writing, and the lease between the Plaintiff and the previous owners was not registered, the relationship between the Plaintiff and the Defendant was reduced to a periodic tenancy to be terminated in the manner to be stipulated by Cap 301. ”

In Embu HCCA No 7 of 2016, John Nthumbi Kamwithi Vs Asha Akumu Juma the Learned Judge held as follows;

25. “Any tenancy which is not a lease and has no specified term of existence and whose rent is payable monthly is a month to month tenancy…”

Had the Landlord herein declined to accept rent after the expiry of the written lease and pursued her remedies under the said lease, the jurisdiction of the Tribunal would have been ousted. The case here is different. I do therefore hold that the tenancy between the parties herein is a controlled tenancy and the Tribunal has jurisdiction to hear and determine this dispute.

In the circumstances and based on the foregoing, the Landlord’s notice of preliminary objection dated 28th April 2021 is dismissed with costs to the Tenant.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON GAKUHI CHEGE THIS 18TH DAY OF JUNE 2021 IN THE PRESENCE OF MR KOKEBE FOR THE RESPONDENT/LANDLADY, MR NYONGESA HOLDING BRIEF FOR SEBASTIAN FOR THE APPLICANT/TENANT.

HON GAKUHI CHEGE

VICE CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL