[2024] KEBPRT 128 (KLR)

Tendercare Hospital Limited v Tuffsteel Limited (Tribunal Case E950 of 2023) [2024] KEBPRT 128 (KLR) (29 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 128 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E950 of 2023

M Makori, Member

January 29, 2024

Between

Tendercare Hospital Limited

Tenant

and

Tuffsteel Limited

Landlord

Ruling

1. The present claim was filed vide an application dated 29th September 2023 supported by the supporting affidavit of Jane Khadija Mwondha.

2. In response the landlord filed a preliminary objection dated 31st October 2023 on the basis that the tribunal lacks jurisdiction to hear and determine this matter on the basis that ;i.The tenancy of Shop number F4 at Imaara mall erected on LR No 209/22595 was reduced into writing and does not fall within the definition of controlled tenancies under section 2910a of cap 301ii.The terms of tenancy aforesaid was for a period of ten years and therefore does not fall within the definition of controlled tenancies as set out under section 2(1)(b)(11) of cap 301. Among other orders.

3. From the totality of the pleadings filed by parties and submissions several issues arise for determination.

4. In arriving on a determination on the matter it is proper to establish whether this tribunal has jurisdiction to entertain this matter. On that basis the first determination would be on whether this tribunal has jurisdiction to entertain this matter as raised under the preliminary objection.

Whether this tribunal has jurisdiction to entertain this matter 5. The threshold of a preliminary objection was set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as follows:“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.”

6. The jurisdiction of Business Premise Rent Tribunal was aptly discussed in the case of Republic v Business Premises Rent Tribunal & another Ex- Parte Albert Kigera Karume [2015] eKLR which cited with approval the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195 where the Court dealt with the provisions of section 12 of Cap 301 and stated as follows:“The Tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied... The powers of the Tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the Tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1) (a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the Tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the Tribunal, but merely states what the Tribunal may do within its area of jurisdiction…… It would be erroneous to think that section 12(4) confers on the Tribunal any extra jurisdiction to that given by and under the Act elsewhere…Section 12(4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the Tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy…. The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”.

7. This Tribunal therefore derives its jurisdiction from the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto.

8. Under section 2(i) of Cap 301, a controlled tenancy means a tenancy of a shop, hotel or catering establishment;a)Which has not been reduced into writing orb)Which has been reduced into writing and which;i.Is for a period not exceeding five years orii.Contains provision for termination otherwise than for breach of covenant within five years from the date thereof oriii.Relates to premises of class specified under subsection (2) of this section.

9. It is clear from the lease agreement at page two and also at the third schedule that the lease term is for ten years from the date of commencement. The tribunal notes that the agreement is undated however a read of the agreement under the lease commencement date and the fit out period shows a commencement date of 1st may 2021 to 31st December 2031. This therefore places the relationship between the Landlord and the Tenant outside the ambit of a controlled tenancy.

10. Based on the above assertions it is clear that the tribunal lacks power to entertain this suit and it would be needless to proceed to provide legal flesh on the other issues raised. Reference can be made to Supreme Court of Kenya case where the centrality of jurisdiction in dispute resolution was underscored - Samuel Kamau Macharia v Kenya Commercial Bank Ltd [2012] eKLR in the following words:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

11. Based on the foregoing, the Tribunal makes the following ordersa.That the tribunal lacks jurisdiction to determine this matter.b.The Tenant’s reference and application dated 29th September 2023 is hereby dismissed.c.Each party shall bear their own costs

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY OF 2024HON. MIKE MAKORIMEMBER29. 01. 2024Delivered in the presence of;Mr. Nguono holding brief for Mr. Macharia for the Tenant/ApplicantMr. Wandati for the landlord/Respondent……………………………..