Airworks Kenya Limited v Kenya Aerospace Limited [2020] KEBPRT 53 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 84 OF 2020 (NAIROBI)

AIRWORKS KENYA LIMITED.........................................................TENANT

VERSUS

KENYA AEROSPACE LIMITED..................................................LANDLORD

RULING

The Tenant/Applicant filed a reference under section 12(4) of Cap 301 and a notice of motion dated 22nd January 2020 seeking to restrain the Landlord and its agent from interfering with the Tenant’s open and quiet enjoyment of the suit premises.  The Tribunal upon perusal of all the pleadings issued interim restraining orders on 23rd January 2020.

The Advocate for the Landlord/Respondent filed a notice of preliminary objection on 7th January 2020 stating that the Tribunal did not have jurisdiction to hear and determine the dispute as the parties had entered a lease agreement for 6 years.

The Landlord/Respondent also on 7th January 2020 filed a notice of motion under a certificate of urgency seeking to set aside the orders of the Tribunal issued on 23rd January 2020.  The Tenant/Applicant on 27th February 2020 filed a replying affidavit to the Landlord’s application dated 7th January 2020.  The replying affidavit had been sworn by Eric Mutinda Kivindu.

The core issue for determination in this matter is whether the Tribunal has jurisdiction to hear and determine this dispute.  The issue of jurisdiction is an issue of pure law which must be based on admitted facts.

The Tribunal has read in details all the submissions of the advocate of the parties and the list of authorities cited by the parties.  The law in respect of a preliminary objection is now considered settled.  There is a list of authorities starting from the case of Mukisa Biscuit Case 1969 EA (696).

The Tribunal has no intention of reviewing all the authorities in this ruling.  The Tribunal upon consideration of all the pleadings in this matter makes the following findings;

1. The Applicant/Tenant did not disclose to the Tribunal the existence of the lease agreement contrary to section 13 of Cap 301.

2. The Tenant/Applicant has not disputed execution of the lease agreement dated 12th March 2018, EXHIBIT MW 2 in the affidavit sworn on 4th February 2020 by Morrison Wayaya.

3. The lease dated 12th March 2018 clause 1. 1.14 “term” means six (6) years from the commencement of the lease.

4. The lease executed by the parties did not have a termination clause for reasons other than breach of the terms of the lease which would have made it a controlled tenancy within the meaning of section 2(1) (b) (ii) of Cap 301.

5. The Tribunal has no doubt in its mind that the tenancy created by the lease dated 12th March 2018 is not a controlled tenancy within the meaning of section 2 of Cap 301.

6. Eric Mutinda Kivindu who swore the replying affidavit filed on 27th February 2020 is a signatory to the lease agreement dated 12th March 2018.

7. That any issues the Tenant may have with the lease dated 12th March 2018 can only be raised with a court which has jurisdiction to deal with the matter and not the Tribunal.

8. The license agreement between TEPE Investment Ltd and the Tenant herein is not part of the dispute before the Tribunal.

All in all the Tribunal is satisfied that the Tenant obtained the orders from the Tribunal by concealment of material facts.  The Tribunal does not have jurisdiction to hear and determine the dispute.

The Tribunal makes the following orders;

1. The Landlord’s application dated 4th February 2020is allowed and the Tribunal makes the following specific orders;

2. A. the orders issued by the Tribunal on 23rd January 2020are hereby set aside.

3. The Tenant’s application dated 22nd January 2020 and the reference of the same date are hereby struck out as incompetent for want of jurisdiction as the lease dated 12th March 2018did not create a controlled tenancy within the meaning of section 2 of Cap 301.

4. The Tenant/Applicant shall pay the Landlord/Respondent all inclusive costs assessed at shs 100,000/-.

5. Costs shall be paid within 30 days from the date of delivery of this ruling in default execution shall issue under section 14(1) of Cap 301.

Ruling dated and delivered this 26th day of May 2020in the presence of Tom Kabau for the Landlord/Applicant.  Advocate for the Tenantabsent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL