Amara BB Limited v Laser Properties Services & 2 others [2025] KEBPRT 310 (KLR)

Amara BB Limited v Laser Properties Services & 2 others (Tribunal Case E199 of 2025) [2025] KEBPRT 310 (KLR) (13 June 2025) (Ruling)

Neutral citation: [2025] KEBPRT 310 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E199 of 2025

CN Mugambi, Chair

June 13, 2025

Between

Amara BB Limited

Applicant

and

Laser Properties Services

1st Respondent

Nadco Solutions Limited

2nd Respondent

and

Local Authorities Pension Trust Registered Trustees

Landlord

Ruling

Introduction 1. The Tenant’s Application dated 17. 2.2025 seeks orders that the Respondents be prohibited from evicting the Applicant or in any manner interfering with the Tenant’s occupation of the premises. The Tenant has also sought an order that it be allowed to continue paying rent as usual to the Respondents. An order has also been sought for the OCS Langata Police Station to ensure compliance with the orders sought.

The Tenant’s depositions 2. The Tenant has deponed in an affidavit sworn by its director, M/S Barnabas Bwambok that it is a Tenant of the Respondents in the Respondents premises known as Freedom Heights where it operates a Bar and Restaurant business and that the Tenant has paid all its rent and there are no outstanding rent arrears.

3. The Tenant has deponed that the Respondents have disconnected water and electricity and further depones that no efforts have been made to reconcile accounts leading to unreasonable and unjustifiable rent demands by the Respondents.

4. That the disconnection of electricity has exposed the Tenant to astronomical losses as its perishable food stuffs have gone to waste.

The 1st Respondent’s depositions 5. The 1st Respondent, in an affidavit sworn by M/S Patrick Mburu, a manager with the 1st Respondent has deponed that the 1st Respondent is a Managing Letting Agent of the Landlord of the suit premises M/S Local Authorities Pension Trust Registered Trustees, the registered owners of the suit premises and the 1st Respondent ought therefore not to be sued in these proceedings.

6. The 1st Respondent has also deponed that the Landlord M/S Local Authorities Pension Trust Registered Trustees (hereinafter called the Landlord) leased out the suit premises to the 2nd Respondent by the letter of offer dated 17. 7.2023 and the Applicant herein is therefore a stranger to the Landlord and is at best a trespasser upon the suit premises.

7. The 1st Respondent also depones that the lease between the Landlord and the 2nd Respondent was for a period of six years.

8. It has also been deponed that the Applicant is not a Tenant under the provisions of Cap 301 and the Tribunal therefore does not have the jurisdiction to handle this matter.

The Landlord’s Application 9. The Landlord’s Application dated 28. 4.2025 sought orders that the Applicant/Landlord be enjoined as the 3rd Respondent in this matter and a further order that the Tribunal be pleased to set aside its orders of 20. 2.2025.

10. The Application is supported by an affidavit sworn by M/S Isaac Mitei wherein it has been deponed as follows;-a.That by a letter dated 17. 7.2023, the Landlord let out a portion of the suit premises to the 2nd Respondent. The terms of the lease are contained in the letter of offer.b.That the 2nd Respondent took possession and has been occupying the suit premises and the Landlord was shocked to be informed that the Applicant now purports to be a Tenant in the suit premises.c.That the Landlord has never entered into any tenancy/relationship with the Applicant.d.That the 2nd Respondent has denied leasing out the suit premises to the Applicant and in any case, the Tenant could not sub-lease the suit premises without the consent of the Landlord.e.That the Tenant has not demonstrated that it has paid any rent to the Landlord or to any of the Respondents.f.That the actual Tenant, the 2nd Respondent, was as at February 2025 owing rent to the Landlord in the sum of Kshs. 2,025,838. 60/= and the Landlord is therefore aggrieved with the orders stopping it from recovering its rent.g.That there does not exist a Landlord/Tenant relationship between the Applicant and the Landlord or indeed the Applicant and the 2nd Respondent and the Tribunal therefore does not have the jurisdiction to hear and determine this suit.h.That it is therefore in the interests of justice that the orders issued on 20. 2.2025 be set aside.

Analysis and determination 11. The issues that arise for determination in both Applications are, in my view the following;-a.Whether the Tribunal has the jurisdiction to entertain the Reference?b.Whether the Tenant is entitled to the orders sought in its Application.c.Whether the Landlord is entitled to the orders sought in its Application.

Issue A: Whether the Tribunal has the jurisdiction to entertain the Reference? 12. The Tenant at paragraph 2 of its supporting affidavit has deponed as follows;-“That at all material times, our company is a Tenant of the Respondents and operates a bar and restaurant business at Freedom Heights 4th Floor at Langata area within Nairobi County by the name Euphoria Lodge.”The Tenant has not disclosed whether it is a Tenant of one or both Defendants and neither has it annexed any lease agreement in its favour from any of the Respondents. The Tenant/Applicant purports to have been paying rent to the Respondents and in support of that allegation, the Tenant has annexed an ABSA Bank slip for the sum of Kshs. 4,000,000/=. The remitter of the funds is one Barnabas Kiprono Bwambok and the beneficiary of the said funds is LA Euphoria Tavern Ltd. I am not sure if this is the same entity referred to as Euphoria Lodge at paragraph 2 of the Applicant’s supporting affidavit.

13. The banking slip annexed to the Applicant’s affidavit does not demonstrate that the Tenant paid any rent to the Landlord or to any of the Respondents as the beneficiary indicated in the said banking slip is not a party to these proceedings and further the Applicant has not established any nexus between the said beneficiary and any of the Respondents and/or the Landlord herein. There is therefore no evidence that the Applicant herein paid any rent to the Landlord or to any of the Respondents herein.

14. The Landlord has denied that it has any tenancy relationship with the Applicant. The Landlord further depones that the entity it recognizes as the Tenant in the suit premises is the 2nd Respondent and with whom the Landlord has a written letter of offer which forms the basis of its relationship with the 2nd Respondent. The Landlord has further deponed that the tenancy agreement it and the 2nd Respondent expressly forbid the 2nd Respondent from subletting the suit premises or part with the possession thereof without the consent of the Landlord. Clause 12 of the agreement provides as follows;-“The lessee will not be permitted to transfer sublet or part with possession of the premises except with the consent of the lessor. Upon breach of the covenant, the lessor may re-enter the premises and thereupon the lease shall be terminated absolutely.”

15. The Applicant has not demonstrated that the 2nd Respondent had the consent of the Landlord to sublet the suit premises or part with possession thereof. For reasons only known to the 2nd Respondent, it has not filed any responses to the Applications under consideration and what is glaring is that there was no consent from the Landlord to the 2nd Respondent to sublet the premises. In these circumstances, no valid tenancy agreement would have arisen between the 2nd Respondent and any third parties including the Applicant herein. In the absence of the Landlord’s consent had and obtained, it is my finding that the 2nd Respondent had no authority to sublease the premises and any such lease amounts to an illegality and the Tenants in occupation pursuant to such lease are no more than trespassers upon the suit property.

16. It is therefore clear that no tenancy exists between the Applicant and the Landlord registered owner of the property and further, no valid tenancy exists between the Applicant and the 2nd Respondent. The 1st Respondent is an agent of the Landlord and cannot also be described as the Landlord of the Applicant. I do not think the occupation of the suit premises by the Applicant cures the illegal nature of the arrangement between itself and the 2nd Respondent and cannot therefore be used as a shield against the Landlord’s exercise of its proprietory rights over the suit premises.

17. I am also of the view that in the above circumstances, the Tribunal has no jurisdiction to hear and determine this matter. In the case of; Pritam vs Ratilal & Another [1972] EA 560, the court stated as follows;-“…therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the preserve of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal: otherwise, the tribunal will have no jurisdiction. There must be a controlled tenancy as defined in Section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction.”

Issue B: Whether the Tenant is entitled to the orders sought in its Application 18. In view of the above findings, the Tribunal has no jurisdiction and the Tribunal has no choice but to down its tools. In the words of the court in the case of; Owners of Motor Vessel Lilian “S” vs Caltex Oil Kenya Ltd [1989] KLR,“That jurisdiction is everything. Without it, the court has no power to make one more step. Where the court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…”

19. The upshot is that, the Reference by the Applicant and the Application filed therewith are hereby dismissed for want of jurisdiction and any interlocutory orders issued hereinbefore are hereby discharged.

20. The Applicant will bear the costs of the suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF JUNE 2025HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Monda for the Respondents and in the absence of the Tenants and Counsel