[2022] KEBPRT 695 (KLR)

Venus Community School v Florence Njeri (Tribunal Case E637 of 2021) [2022] KEBPRT 695 (KLR) (Civ) (26 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 695 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E637 of 2021

Andrew Muma, Vice Chair

August 26, 2022

Between

Venus Community School

Applicant

and

Florence Njeri

Respondent

Ruling

1. The applicant Venus Community School is the tenant and rented space on the suit property known as Dagoretti/Kangemi 68-834 Nairobi. (hereinafter known as the ‘tenant’)

2. The firm of Bundi & Company Advocates represents the applicant/tenant in this matter.

3. The respondent Florence Njeri is the Landlord and rented out space for the business in the suit property known as Dagoretti/Kangemi 68-834 Nairobi. (hereinafter the “landlord”)

4. The firm of Kagwe Kithinji & Co Advocates represents the landlord/respondent in this matter.The Dispute Background

5. The landlord and the tenant entered into a tenancy agreement for a term of ten years from May 15, 2018 to May 15, 2028. The landlord disputes the authenticity of the said lease agreement and alleges that the tenant had a previous lease with one Mr Gichamba, the original owner of the property who is now deceased. The said lease was entered into in 2009 and expired in 2018.

6. The landlord has since issued the tenant with a notice to terminate tenancy dated October 8, 2021 on the grounds that they want to demolish the existing structures and construct new ones.

7. In opposition to the said notice the tenant moved this tribunal by way of a reference and a notice of motion application under certificate of urgency dated October 22, 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The tenant was seeking amongst other orders that pending the hearing and determination of the application that the tribunal restrain the applicant/landlord from closing the premises, evicting and harassing them pending the hearing and determination of this matter. The tenant’s claim

8. The tenant filed a reference dated August 26, 2021 and a notice of motion application dated October 22, 2021.

9. The tenant has also filed a further affidavit dated March 22, 2022.

The Landlord’s Claim 10. The landlord has filed a replying affidavit dated November 30, 2021 as well as witness statements from the 2nd, 3rd and 4th respondents.

List of Issues For Determination 11. It is the contention of this tribunal that the issues raised for determination are as follows;

I. Whether the Lease Agreement entered into by the parties is valid and as such whether the Tribunal has jurisdiction to determine the matter? Analysis and Findings Whether the lease agreement entered into by the parties is valid and as such whether the Tribunal has jurisdiction to determine the matter? 12. 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”

13. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 2 defines a controlled tenancy as;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;.

14. In this case, the tenant has presented before this tribunal that they entered into a lease agreement with the landlord for a term of ten years from May 2018. They have annexed the same and upon perusal I find that it has been executed by both parties herein.

15. The landlord has put to question the authenticity of the lease on the basis that the signature of the landlord was forged. They have also provided that the tenant had a previous lease with the original owner of the property Mr Gichamba who is now deceased and that the same expired in 2018. They have however failed to provide the same before this tribunal.

16. Having perused the court file I have not found any evidence provided by the Landlord to prove their claims that the signature is not authentic. The landlord had requested to put in a report from the DCI to prove the same. As such, in pursuit of justice the tribunal cannot determine the matter to finality until the same is availed.

17. in any event the tribunal has powers over unwritten leases/month to month tenancies where a tenancy relationship is established.

Ordersa. The reference to be heard on October 17, 2022. b. The landlord to produce the lease documents in 14 days.c. The tenant to respond in 14 days.d. Status quo to be maintained that is the tenant to continue paying rent as scheduled.

HON A. MUMA VICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A. Muma this 26th day of August 2022 in the presence of Karanja for the Landlord and in the absence of the Tenants.GIVEN under my hand and Seal of this Court on 2022-09-09 14:57:28SIGNED BY: HON. ANDREW MUMA (VICE CHAIRPERSON) (ADMINISTER JUDGEMENTS)THE JUDICIARY OF KENYA. BUSINESS PREMISES RENT TRIBUNAL NAIROBIDATE: 2022-09-09 14:57:28The Judiciary of Kenya