[2022] KEBPRT 96 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E380 OF 2021 (NAIROBI)

TIMOTHY CHEGE NJUNGE.........................................................TENANT/ APPLICANT

VERSUS

KENYA RAILWAYS STAFF RETIREMENT

BENEFITS SCHEME.............................................................LANDLORD/RESPONDENT

RULING

A. Parties and Representatives

1. The Tenant Timothy Chege Njunge rented space on the suit property land LR No. 209/12088 situated at Landmawe estate in Nairobi allegedly owned by itself (hereinafter known as the ‘Tenant’)

2. The firm of Njuguna J.K & Company Advocates represent the Tenant/Applicant in this matter. info@njugunajkandcoadvocates.co.ke

3. The Landlord/Respondent is the owner of the suit property LR No. 209/12088 (hereinafter the “Landlord”).

4. The firm of Chege Kibathi & Co. Advocates represent the Landlord/Respondent in this matter. litigation@ckadvocates.co.ke

B. The Dispute Background

5. On 5th August 2021 the Tenant moved this Tribunal by way of reference and notice of motion application under certificate of urgency under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking that pending the hearing and determination of the reference the Landlord/Respondent by itself, its agents and/or servants be restrained from entering, alienating, constructing and/or interfering with the occupation of the Tenant on the premises.

6. On 5th August 2021 the Honourable Tribunal granted restraining orders against the Landlord/Respondent pending the hearing and determination of the suit.

7. On 27th October 2021 the Landlord/Respondent filed a preliminary objection on the grounds that the Tenant’s application contravenes Section 2 and 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Cap 301.

C. Jurisdiction

8. The jurisdiction of this Tribunal is in dispute.

D. The Tenant’s Claim

9. The Tenant filed a notice of motion application under certificate of urgency and supporting affidavit dated 5th August 2021 and obtained orders from the Tribunal on 22nd June 2021 seeking injunctory orders against the Landlord to prevent them from interfering with their occupation of the suit premises.

E. The Landlord’s Claim

10. The Landlord filed a replying affidavit claiming that there was no lease agreement between themselves and the Applicant, instead there existed a temporary occupation licence which has since lapsed.

11. The Landlord filed a preliminary objection dated 27th October 2021. This was to be handled together with their application dated 5th August 2021.

F. List of Issues For Determination

12. Does the Tribunal have jurisdiction to deal with this matter?

13. If so is the notice of intention to apportion the premises done as per the law?

G. Analysis and Findings

Whether the Tribunal has jurisdiction under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to investigate the complaint raised by the tenant?

14. Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that;

“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit”

15. The above provision allows the Business Premises and Rent Tribunal to in addition to the powers conferred upon it by the Act investigate on any other matters that may be raised in relation to a controlled tenancy.

16. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 2defines 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;

17. In the present case, the Landlord avers that the relationship between themselves and the Tenant was not created through a lease but a temporary occupation license which was attached to their pleadings.

18. The said agreement had indeed lapsed the Tenant continued in occupation and the Landlord continued to receive rent in the circumstance my interpretation is that a Landlord/Tenant relationship was created which was not reduced into writing but warrants the Tenant to move this Tribunal as he properly did. The preliminary objection as such must fail.

19. In light of the above the second issue of apportionment raised in the application must be done as per the requirements of the act were the Landlord seeks to vary the terms of an agreement the same must be by leave of this Tribunal as such for any such variations to be valid leave of this court must be sought. It has also been brought to the attention of the Tribunal that contempt proceedings have been filed as against the Landlord herein dated 29th December 2021 that said, I therefore proceed to order as follows;

H. Orders;

a) The upshot is that the Landlord’s preliminary objection dated 27th October 2021 is hereby dismissed.

b) The Tenant’s reference and application dated 5th August 2021 and reference are hereby allowed in the terms herein under.

c) Hearing of the reference to be fixed in 90 days.

d) Landlord to file documents in support of apportionment together with witness statements in 30 days.

e) Tenant to Respond in 30 days.

f) Rent inspector to visit the premises and establish viability of any such apportionment and issue a report in the next 30 days Tenant to facilitate. Costs to be Shared.

g) Costs in Cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 3rdday ofFebruary, 2022 in the presence of Thukufor theTenant/Applicantand in the absence of theLandlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL