[2025] KEBPRT 217 (KLR)

Vudoyi t/a Vicoma Butcheries v Kenya Industrial Estates Limited (Tribunal Case E019 of 2025) [2025] KEBPRT 217 (KLR) (4 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 217 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E019 of 2025

Gakuhi Chege, Chair & J Osodo, Member

April 4, 2025

Between

Hargreaves Magwaga Vudoyi t/a Vicoma Butcheries

Applicant

and

Kenya Industrial Estates Limited

Respondent

Ruling

1. Bya preliminary objection dated 7/2/2025, the Landlord moved this Tribunal seeking for dismissal of the tenant’s suit herein on the grounds that the tenancy in question is not a controlled one within the meaning and interpretation of Cap. 301, Laws of Kenya as the Landlord is a government entity and the tenancy agreement is for a term exceeding five years.

2. On 11/2/2025, the preliminary objection was directed to be canvassed through written submissions and both parties complied. The Landlord’s submissions are dated 18/2/2025 while the tenant’s submissions are dated 3/3/2025.

3. We are now required to determine whether, the preliminary objection ought to be allowed or dismissed.

4. The Respondent submits that the tenancy herein being uncontrolled is not within the jurisdiction of this Tribunal as Kenya Industrial Estates Limited is a fully government owned entity under the Ministry of Cooperatives and Micro Small and Medium Enterprises Development and is therefore exempted by virtue of the proviso to Section 2 of Cap. 301.

5. The Respondent relies on the decision of the Superior Court in Kenya Union of Domestic, Hotels, Education and Allied Workers (Kudheha) =Vs= Salaries and Renumeration Commission (2014) eKLR wherein Justice Isaac Lenaola (as he then was) at paragraphs 28 and 30 had the following to state: -28. “I now revert to the issue whether Petitioner Members are employees in the National Government. To my mind State corporations are part of the National Government. Black's Law Dictionary, 8th Edition defines the term 'government' as being;“(i)The structure of principles and rules determining how a state or organization is regulated.(ii)The sovereign power in a Nation or State.(iii)An organization through which a body of people exercises political authority, the machinery by which sovereign power is expressed”.Taking the first definition of principles and rules determining how a State is regulated and also the second definition of 'the sovereign power in a nation or State' in the context of this petition, Article 260 defines the term 'state' as follows;“When used as a noun, means the collectivity of offices, organs and other entities comprising the government of the Republic under this Constitution.”29. Further, Article 1 of the Constitution provides as follows;1)…2)...3)Sovereign power under this constitution is delegated to the following state organs, which shall perform their functions in accordance with this Constitution-(a)Parliament and the legislative assemblies in the county government,(b)the national executive and the executive structures in the county government(c)The judiciary and the independent tribunals”.30. Article 248 of the Constitution then creates Commissions and independent offices. Taking all the above definitions of the Government and the state, it is difficult not to appreciate that state corporations are entities comprised in the National Government. For instance, The Kenyatta National Hospital, The Moi Teaching and Referral Hospital, are state corporations are within the Ministry of Health, KPLC within the Ministry of Energy, The Public universities within the Ministry of Education and Technology. That being so, it automatically follows that their employees are public servants and any other finding would be absurd, illogical and impractical given the design and structure of our Constitution. In passing I would like to reiterate my earlier sentiments in Okiya Omtatah Okoiti and Another v Attorney General and Another Petition No. 446 of 2013 where I stated thus;“It seems to me that the 1st Petitioner has taken a very narrow meaning of 'government' to mean 'executive' and in fact only 'the national executive' in the traditional 'serikali' meaning. The national executive as structured in the Constitution is quite different from the National Government”.

6. The Respondent further cites the cases of Teachers Service Commission =Vs= Benson Kuria Mwangi (2020) eKLR and B.O.M Baba Dogo Secondary School =Vs= E.K. Maina t/a CHEM Equipment Enterprises Ltd (2019) eKLR wherein the TSC and B.O.M Baba Dogo Secondary School being public entities were not required to deposit security by dint of Order 42 Rule 8 of the Civil Procedure Rules. It is argued that the reference to government in Cap.301 should attract the same interpretation.

7. According to the Landlord, the lease entered into on 1/5/2016 having been in existence for 9 years and therefore being for a period exceeding 5 years is not a controlled tenancy and this Tribunal lacks jurisdiction.

8. On the other hand, the tenant’s Counsel submits that the preliminary objection lacks merit and ought to be dismissed citing the cases of Mukisa Biscuits =Vs= West End Distributors Ltd (1969) E.A 697 & Biosystems Consultants =Vs= Nyali Links Arcade (2023) KEHC 21068 on what a preliminary objection constitutes.

9. The Respondent further relies on the decision of Ojwang J. (as he then was) in the case of Oraro =Vs= Mbaja (2005) eKLR and concludes with a plea that the preliminary objection does not meet the test laid down in the said case.

10. We have interrogated the case and we agree with the tenant’s Counsel that the determination of the preliminary objection herein will require this Tribunal to interrogate matters of contested evidence in order to conclude that the Landlord is a government entity fully funded by the exchequer to qualify for consideration as such. The said fact being contested ought to be interrogated at the hearing of the case. The tenant has argued that the Landlord is a Company registered under the Companies Act as No. C7447 and therefore a legal person with rights, obligations and membership which is separate from Government in line with the principles in Salomon =Vs= Salomon & Co. Ltd (1896) UK HL1. As such, a strict application of Section 2 of Cap 301, cannot resolve the dispute herein.

11. In regard to the question whether, the tenancy is controlled or not, the tenant argues that the same is a periodic tenancy of month to month. We note that the alleged lease agreement for more than 5 years has not been exhibited by either party. We therefore have no basis to hold that the tenancy is not controlled.

12. In the premises, the Preliminary Objection lacks merit and is dismissed with costs to the tenant.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4THDAY of APRIL 2025. HON GAKUHI CHEGE - PANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE A. OSODO - PANEL MEMBERIn the presence of: -Edaki for TenantMbotiro the landlord.