[2022] KEBPRT 49 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E596 OF 2021 (NAIROBI)

WILLIAMS HILL STRATEGIC

RESEARCH & COMMUNICATION LTD.........................TENANT/APPLICANT

AFRICA POLICY INSTITUTE LTD......................OBJECTOR/2NDAPPLICANT

VERSUS

THE BOARD OF NATIONAL

HOSPITAL INSURANCE FUND.....................1ST RESPONDENT/LANDLORD

CRYSTAL VALUERS LIMITED.............................................2ND RESPONDENT

PETER GACHIE T/A REGENT AUCTIONEERS..............3RD RESPONDENT

RULING

1. The instant proceedings were instituted by way of a reference dated 18th October 2021 wherein the tenants are seeking for:-

“(a) A permanent injunction do issue restraining the defendants, their agents or employees from possession and selling, auctioning the items, goods/assets listed in and based on the proclamation of attachment dated 6th October 2021 by the 3rd defendant.

(b) A permanent injunction do issue restraining the defendants, their agents or employees from evicting the 1st complainant from the office space on 5th floor of NHIF parking complex, the leased premises.

(c) The costs of the suit”

2. The tenants contemporaneously filed a motion dated 18th October 2021 seeking temporary orders of injunction in similar terms with the reference.

3. The reference and application are opposed through a replying affidavit sworn by Wilson Kamau, the 1st Respondents Fund Manager-property on 2nd February, 2021 to which is annexed a letter of offer dated 8th February 2017 and lease over the suit premises marked ‘WK-1’ & WK-2’ respectively.

4. A notice of preliminary objection dated 2nd December 2021 was filed to the effect that the honourable Tribunal has no jurisdiction to hear and determine this suit under section 2 of Cap. 301 as the tenant is not protected within the confines of the law.

5. The preliminary objection was directed to be disposed of by way of written submissions but only the 1st Respondent complied.

6. It is the 1st Respondent’s submission that the letter of offer dated 8th February 2017 stipulates that the lease was for a period of six (6) years commencing 1st March 2017 at clause no. 5 thereof.

7. As such the relationship between the 1st Respondent and the tenant cannot be controlled under Section 2(1)(a), (b) (i) and (ii) of cap. 301, Laws of Kenya as the lease was for more than 5 years.

8. The respondent’s counsel cites the decision in the case of George Omondi & 210 Others – vs- Retirement Benefits Appeals Tribunal & 2 others (2020) eKLR, Republic -vs- Business Premises Rent Tribunal & Another ex-parte Albert Kigera Karume(2015) eKLR, Jubilee Insurance Company Limited – vs- Joseph Ndungu Karega T/A Leather Touch Foot Care Specialists (ELC No. 1205/2013), Neo Amadiva Limited – vs- Cape Holdings Limited & Another(2020) eKLR Bconcept Limited – vs- Goldrock Development Limited & 2 Others Tribunal case no. 1142 of 2019 and Phoenix of EA Assurance Company Limited – vs- S M Thiga t/a Newspaper Service (2019) eKLR to buttress her submissions.

9. In the case of the Owners and Master of Motor Vessel ‘Joey’ – vs- Owners and Masters of the Motor Tugs ‘Barbara’ and ‘Steve B’ (2007) eKLR at page 7/15 the court of appeal 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.

10. Citing Nyarangi J.A in the Owners of the Motor Vessel ‘Lilian’ ‘S’ – vs- Caltex Oil (K) Ltd (1989) KLR the court stated 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 power to make one more step. Where a court has no jurisdiction, there would be 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”.

11. I have looked at the letter of offer and the lease marked “WK-1 & 2” respectively and I am satisfied that the tenancy period is 6 years which removes it from the provisions of Cap. 301, Laws of Kenya.

12. In the premises, the final orders which commend to me are as follows:-

(i) The preliminary objection dated 2/12/2021 is hereby upheld and the notice of motion dated 18th October 2021 as well as the reference of even date is hereby struck out for want of jurisdiction

(ii) The ex-parte orders given on 18th October 2021 are hereby discharged and/or vacated forthwith.

(iii) Costs of the application and reference assessed at Kshs.30,000/- are awarded to the 1st Respondent.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF MARCH 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Ms Waturi holding brief for Odhiambo for the Tenant

No appearance for the Landlord.