[2025] KEBPRT 338 (KLR)

Trent Koutsoubos Jonathan t/a Sinitek Music Limited v NBST Heltz Limited (Tribunal Case E389 of 2025) [2025] KEBPRT 338 (KLR) (Civ) (11 July 2025) (Ruling)

Neutral citation: [2025] KEBPRT 338 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E389 of 2025

A Muma, Member

July 11, 2025

Between

Trent Koutsoubos Jonathan t/a Sinitek Music Limited

Applicant

and

NBST Heltz Limited

Respondent

Ruling

A. Parties And Their Representatives 1. The Applicant, Trent Koutsoubous Jonathan T/A Sinitek Limited is the tenant of the premises which is the subject matter of the present suit. (the “Tenant”).

2. The Firm of Jeremiah Obila & Co. Advocates is on record for the Tenant in this matter.

3. The Respondent, NBST Heltz Limited is the registered proprietor of the suit premises (the “Landlord”).

4. The Firm of Kaplan &Stratton Advocates is on record for the Landlord.

A. Dispute Background 5. The Tenant moved this Honorable Tribunal vide a Reference and Application dated 9th April 2025. The Tenant sought, inter alia, the following Orders from this Honorable Tribunal:i.That the Respondents be restrained by an order of this Honorable Court, from proceeding with an unlawful eviction from the premises, thereby depriving him of my legal rights and causing further irreparable harm.ii.That the application be certified urgent and service thereof be dispensed with in the first instance.

6. In opposition to the Tenant’s Application, the Landlord filed an Application dated 23rd April 2025.

B. Tenant ’s Claim 7. The Tenant vide his Application dated 9th April 2025 and Further Submissions dated 3rd June 2025, averred that the Respondent illegally evicted the Tenant from the suit premises without any notice on 14th March 2025.

8. He further submits that on there was a clear landlord tenant relationship between him and the landlord as the landlord had granted him exclusive possession of the subject premises between December 2024 and March 2025.

9. He further averred that in as much as there is no valid and enforceable license agreement between him and the Landlord, the relationship qualifies as a controlled tenancy.

C. Landlords’ Case 10. The Landlords vide his Application dated 23rd April 2025 contends the tenant is in a forced landlord-tenant relationship with the Respondent and that even after forcing his tenancy, the Tenant willfully neglected/refused to honor his tenancy obligations towards the Applicant as per the agreement,

11. It is the landlord’s case that there should not be forced a landlord-tenant relationship between him and the tenant and as such the tribunal has no jurisdiction to entertain the matter

D. Issues For Determination 12. Having carefully perused all the pleadings and evidence presented before this Honourable Tribunal by the parties; it is my respectful finding that the issues for determination is:a.Whether this Honorable Tribunal has jurisdiction to entertain the matter?

E. Analysis And Findings a. Whether this Honorable Tribunal has Jurisdiction to entertain this matter? 13. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 of the Laws of Kenya (the "Act") defines a controlled tenancy as follows;“Controlled tenancy" means a tenancy of a shop, hotel or catering establishment—a.Tenancy relationship not reduced into writingb.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 commencement thereof; oriii.relates to premises of a class specified under subsection (2) of this section:”

14. 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.

15. In this particular case, the Tenant adduced evidence to prove that he was granted exclusive possession of the suit premises by the landlord between December 2024 and March 2025. The signing of the licence agreement however did not happen to enable the tenant to pay rent since the Landlord did not respond to the tenant to inform him on the same despite the tenant having reached out to the landlord severally.

16. In Kenya Airports Authority v Paul K. Mugeke t/a Kairi Tours and Safaris [supra], the court held that:“It is not clear from the record, the circumstances that qualified the Tenant as a controlled tenant. What is clear, however, is that there is no written agreement between the Appellant and the Respondent, since what was produced was a notification of award dated November 15, 2016 which had clause vi that required a licence agreement to be signed by the parties within 28 days and not less than 14 days from the date of its execution. It is evident that none was signed and in lack of a written agreement it can only be concluded that the tenancy was deemed as a controlled tenancy within the meaning of the Act."

17. It is our finding therefore that there existed a controlled tenancy between the Landlord and the Tenant having granted the tenant access to the premises and even allowed the tenant to carry out repairs in the premises.

18. Further, it is clear that in exercising the powers conferred under the Landlord and Tenants, Shops, Hotels, and Catering Establishments Act, the Tribunal must restrict itself to the powers conferred under section 12. In Pritam v Ratilal and Another Nairobi HCCC No. 1499 of 1970 [1972] EA 560 the court stated as hereunder:“As stated in the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act itself, it is an Act of Parliament to make provision 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. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. Therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal; otherwise the tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the tribunal has no jurisdiction.” [Emphasis mine].

19. Guided by the foregoing decision and having established that there is a landlord tenant relationship, it’s therefore the finding of this court that it has jurisdiction to entertain this matter.

F. Orders 20. In the upshot, the Landlord’s Notice of Preliminary Objection dated 2nd May 2025 is dismissed in the following terms:i.The Landlord’s Reference and Applications fixed for interparties hearing on the 29th of July 2025. ii.Parties to file additional documents in 14 days each landlord to commence.

HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, delivered and signed at Nairobi on this 11th July 2025 in the presence of Njenga for the Landlord and No Appearance for the Tenant.HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNAL