[2021] KEBPRT 398 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 1001 OF 2019 (NAIROBI)

WINERACK (SAILORS).......................................................................TENANT/APPLICANT

VERSUS

NEW REALITE LIMITED....................................................1ST RESPONDENT/LANDLORD

KENYA CARGO HANDLING SERVICES LTD.........................................2ND RESPONDENT

HAKI TRADERS AUCTIONEERS..............................................................3RD RESPONDENT

CHARLES MWANGI KAMANDE T/A

CHAKA & CO. ACUTIONEERS..................................................................4TH RESPONDENT

RULING

1. Before me are 2 applications dated 12/2/2021 and 8/3/2021 by the Tenant/Applicant which were ordered to be disposed of by way of written submissions by consent of parties.

2. Although the Respondents alluded to an intention to file a preliminary objection to the two applications, I have perused the court file and have not seen such filing. As such I will proceed to determine the two applications on merit.

3. The motion dated 12th February 2021 is seeking in pertinent part for a permanent injunction restraining the Respondents from advertising the premises, letting out the premises to third parties or evicting the Tenant/Applicant’s or otherwise interfering with the Tenant/Applicant’s occupation of suit premises at L.R. NO. 209/373/10 Argwings Kodheck Road, Hurlingham Court, Nairobi.

4. The application is supported by the affidavit of John Kingori sworn on 12th February 2021 in which he deposes that on 15th October 2019, this Tribunal restrained the Respondents from evicting, encroaching, levying distress and/or in any other manner whatsoever dealing with the Applicant’s/Tenant’s suit premises.

5. On 15th January 2021, the 4th Respondent in cahoots with the 1st and 2nd Respondent wreaked havoc at the suit premises, attached goods and carted the same away leaving behind an invoice contrary to the Tribunal orders. According to the Applicant this was illegal, irregular and void ab initio.

6. The application was brought in fear that the Respondents intended to advertise and let the premises to third parties in order to defeat justice in this suit.

7. By reason of the intended sale and letting of the suit premises to third parties, the Applicant stand to suffer substantial and irreparable harm.

8. The Applicant contends that failure to grant the orders sought herein could amount to sanitizing the contemptuous attitude displayed by the Respondents towards earlier orders.

9. I have perused the court file and have not come across any response to the application by the Respondents.

10. As such the averments contained in the supporting affidavit are not controverted.

11. In the premises, there is nothing that stops this Tribunal from allowing the application interms of prayers 4 and 5 and I proceed to grant the same.

12. The second application seeks a declaration that the levying of distress for rent, attachment of goods and locking of the Tenant’s/Applicant’s business was done in contempt of the orders issued.

13. It further seeks that the Respondents be cited for contempt of court and be punished accordingly including by way of sentence to a jail term at the court’s discretion.

14. The application is supported by the affidavit of JOHN KINGORI sworn on 9th March 2021.

15. Although the application is not opposed, I need to interrogate whether this Tribunal has jurisdiction to entertain the application in line with the locus classicus case of Owners of Motor Vessel’ Lilians’ vs- Caltex Oil (Kenya) Ltd (1989) eKLR where it has held that jurisdiction is a threshold issue and ought to be determined on the outset. A court without jurisdiction should not take one more step and ought to down tools the moment it concludes so.

16. This Tribunal’s jurisdiction is derived from the Landlord, Tenant (shops, Hotels and Catering establishments) Act, Cap 301, Laws of Kenya.

17. Section 12 of the Act defines the powers which this Tribunal may exercise and section 12(2) thereof is express that a tribunal shall not have or exercise any jurisdiction in any criminal matter or entertain any criminal proceedings for any offence whether under the Act or otherwise.

18. Contempt of court proceedings are quasi judicial criminal proceedings and as such this Tribunal is debarred from exercising jurisdiction thereon.

19. I am fortified in this holding by the decision in the case of Aloise Cweya Obaga –vs- Ouru Power Limited and 2 others (2017) eKLR which extensively discussed the procedure of instituting contempt of court proceedings and cited with approval the case of Katsuri Limited VS- Kapurchand Depar Shah (2016) eKLR paragraph 15 wherein Mativo J. observed as follows:-

“ I find it fit first to examine the procedure for instituting contempt of court proceedings in this country. This calls for examination of section 5 of the Judicature Act which provides as follows:-

(i) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of justice in England and that power shall extend to the upholding the authority and dignity of subordinate courts”.

20. In the premises, the application dated 8th March 2021 is before the wrong court as it ought to have been filed before the High Court under Section 5, of the Judicature Act.

DISPOSITION

21. The upshot of the foregoing findings is that:-

(i) The application dated 12th February 2021 is allowed in terms of prayers 4 and 5 thereof.

(ii) The application dated 8th March 2021 is hereby struck out for want of jurisdiction with no orders as to costs.

DATED, SIGNED & DELIVERED THIS 3RD DAY OF AUGUST 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mrs Kinyanjui for the Respondents

Applicant/Tenant present through John Kingori (proprietor of the Applicant.