[2021] KEBPRT 180 (KLR)
The Tribunal found that the tenancy agreement between the applicant and the respondents was for a fixed term of six years, as evidenced by the letter of offer dated 6th February 2019. The agreement did not contain a termination clause other than for breach of covenant. According to Section 2 of the Landlord and...
Source-derived case information.
- Citation
- [2021] KEBPRT 180 (KLR)
- Parties
- Applicant: Tom Oluoch t/a Doorstep Salon; Respondent: Kenya Conference of Catholic Bishops; Respondent: New Realite Limited; Respondent: Adam Kangethe t/a Garam Investments
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E117 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application for Restraining Orders
- Outcome
- Preliminary objection upheld; application and reference struck out for want of jurisdiction.
- Legal Topics
- Controlled Tenancy, Jurisdiction of Tribunal, Preliminary Objection, Landlord Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Oluoch t/a Doorstep Salon
Applicant
Kenya Conference of Catholic Bishops
Respondent
New Realite Limited
Respondent
Adam Kangethe t/a Garam Investments
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application for Restraining Orders
Legal Issues
- 1 Whether the tenancy in question is a controlled tenancy under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301.
- 2 Whether the Tribunal has jurisdiction to hear and determine the dispute between the parties.
- 3 Whether the application by the tenant/applicant is an abuse of court process.
Ratio Decidendi
The Tribunal found that the tenancy agreement between the applicant and the respondents was for a fixed term of six years, as evidenced by the letter of offer dated 6th February 2019. The agreement did not contain a termination clause other than for breach of covenant. According to Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, a controlled tenancy must either not be in writing, be for a period not exceeding five years, or contain a termination provision within five years. Since the tenancy in question was in writing, for a period exceeding five years, and lacked a termination clause within five years, it did not qualify as a controlled...
Court Disposition
Preliminary objection upheld; application and reference struck out for want of jurisdiction.
Orders
- The preliminary objection dated 14th June 2021 is upheld.
- The application dated 7th May 2021 and the reference by way of plaint dated 7th May 2021 are struck out with costs to the respondents.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E117 OF 2021 (NAIROBI)
TOM OLUOCH T/A DOORSTEP SALON............................................TENANT/APPLICANT
VERSUS
KENYA CONFERENCE OF CATHOLIC BISHOPS...........1ST LANDLORD/RESPONDENT
NEW REALITE LIMITED..............................................................2ND RESPONDENT/AGENT
ADAM KANGETHE T/A GARAM INVESTEMENTS.........AUCTIONEERS/RESPONDENT
RULING
1. Through a motion dated 7th May 2021, the Tenant herein is seeking for restraining orders against the landlord from harassing, intimidating and carrying away his goods or in any other manner interfering with peaceful occupation of the suit premises pending the hearing and determination of the case.
2. He also seeks that the Respondents be ordered to issue receipts for each and every payment made by him.
3. According to the replying affidavit of very Rev. FR. Ferdinard Lugonzo sworn on 14th June 2021, the applicant signed a letter of offer dated 6th February 2019 for the suit premises for a term of six (6) years from 1st January 2019. The same is marked “FL”. As such the Respondents contend that the tenancy is not controlled.
4. By a notice of preliminary objection dated 14th June 2021, the Respondents contend that this Tribunal lacks jurisdiction under Section 12 (4) of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act Cap. 301, Laws of Kenya as the tenancy term is for six (6) years and was still in force.
5. It is further contended that the current application is an abuse of court process.
6. Section 2 of Cap. 301 defines a “controlled tenancy” to mean a tenancy of a shop, hotel or catering establishment,
“(a) which has not been reduced into writing and which:
(i) Is for a period not exceeding five years or
(ii) Contains provision for termination otherwise then for breach of covenant within five years from the commencement thereof
(iii) Relates to premises of a class specified under subsection (2) of this section”.
7. In the case of the Owners and Master of the Motor Vessel ‘Joey’ and the Owners and Masters of the Motor Tugs ‘Barbara’ & Steve B” (2007) eKLR at page 7/15 it was held that the question of jurisdiction is a threshold issue and must be determined by a Judge at the threshold stage using such evidence as may be placed before him by the parties. Citing Nyarangi J.A in the Owners of the Motor Vessel ‘Lilian ‘S’ – vs- Caltex Oil (Kenya) Ltd (1989) KLR it was held as follows:-
“ I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized…….of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, Without it, a court has no basis for a continuation of proceedings pending other evidence. A court of law down (sic) tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction………..”.
8. I have examined the letter of offer marked ‘FL’ annexed to the replying affidavit of the Respondents and it is clearly indicative that it is for a period of 6 years with effect from 1st January 2019. It has no termination clause save for breach of covenant.
9. In the premises, the lease being for 6 years is not controlled within the meaning and interpretation of section 2 of the Landlord and Tenant shops, Hotels and catering Establishments) Act, Cap. 301 Laws of Kenya. The Tribunal therefore has no jurisdiction to adjudicate the instant dispute.
10. In the premises, the orders that commend to me are as follows:
(a) The preliminary objection dated 14th June 2021 is hereby upheld.
(b) The application dated 7th May 2021 together with the reference by way of a plaint dated 7th May 201 are hereby struck out with costs to the Respondents.
(c) The Respondents’ costs against the Applicant are assessed at Kshs.35,000/-.
DATED, SIGNED & DELIVERED THIS 15TH DAY OF OCTOBER 2021 VIRTUALLY.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:-
Miss Mwirigi holding brief for Kanjama for Respondent
Applicant/Tenant present in person