Andrew Biketi Wabuyele v G.H. Tanna & Sons Holding Limited & F.C. Njuguna t/a Femfa Auctioneers [2022] KEBPRT 51 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. E669 OF 2021

ANDREW BIKETI WABUYELE……………...………………….…………TENANT

VERSUS

G.H. TANNA & SONS HOLDING LIMITED….………………1ST RESPONDENT

F.C. NJUGUNA

T/A FEMFA AUCTIONEERS…...……………………………...2ND RESPONDENT

RULING

Parties and their Representatives

1. Koki Mbulu & Company Advocates, represent the tenant.

2. Kidiavai & Company Advocates represent the Agent.

3. The parties entered into an oral lease agreement which came into effect on October, 2018 over the suit property L.R. No. 2116/8/IV (I.R No. 998).

Tenant’s case

4. The Tenant on 11th November 2021moved this honourable court by way of reference and notice of motion, both dated same day seeking among other orders for:

i. Restraining, injuncting the 1st Respondent and its agents F.G Njuguna T/a FEMFA Auctioneers the 2nd Respondent herein being the Landlord’s Auctioneers based in Kitale from alienating, selling or interfering or disposing the tenant’s goods and property pending hearing and determination of the reference.

ii. An order of the Tribunal injuncting the 1st Respondent from re-letting and/or possession of suit premises situate on the 6th Floor, Amigo plaza which premises were previously occupied by the Applicant T/A Martinis Ultra Lounge.

iii. That the costs of this application be costs in the reference.

5. The Tenants vide an order dated 12th November 2021 obtained order 1, restraining, injuncting the 1st Respondent and its agents from alienating, selling or interfering or disposing the Tenant’s goods and property pending hearing and determination of the reference and an Order certifying the matter as urgent.

6. The Respondents sought, vide a notice of preliminary objection dated 18th December 2021 to contest the jurisdiction of this Honourable Court. It is their deponent that this Tribunal lacks proper jurisdiction to hear and determine the Tenant’s application and Reference.

7. The Tenant contends that the relationship between the parties is a controlled tenancy within the meaning of Cap 301. That No lease agreement was signed or registered indicating the amount of rent payable.

8. He deponed that the Respondent did not conform with the provisions of section 4(2) of 301 of the Laws of Kenya in respect to the notice of termination of this kind of a tenancy relationship.

9. He deponed that the rent for the suit property is indeterminate and unascertainable.

10. It is his case that the distress for rent by the auctioneers under 1st Respondent’s instructions, coupled with the taking of the Tenant’s goods is unsanctioned unauthorized distress for rent and that the impending sale of the goods is illegal.

Landlord’s Case

The Respondent deponed that he is the owner of the suit property.

1. He contended that the lease agreement was oral.

2. He deponed that the Tenant paid rent for the first three months, then he started paying irregularly, then stopped paying altogether.

3. That despite him serving the Tenant a demand letter requesting for paying of arrears and rent due, the Tenant remained reluctant.

4. He deponed that the Tenant locked the premises and left to unknown place, and, left some of his assets behind.

5. That the 1st Respondent instructed the 2nd Respondent to seek leave of the Court to levy distress for rent on his behalf from the Court.

6. That the 2nd Respondent vide an application in Kitale Chief Magistrate’s Court Miscellaneous Civil Application No. 40 of 2021,was granted authority to break into the suit premise.

7. The Respondents further deponed vide their notice of preliminary objection dated 18th December 2021 that this Honourable Tribunal does not have jurisdiction to hear and determine this matter.

Jurisdiction

8. Jurisdiction of this court is in dispute.

The Tenant’s Submission on Respondent’s Preliminary Notice of Objection dated 1st December 2021

9. The Tenant filled written submissions dated 14th December 2021 in response to the preliminary objection raised by the Respondent. He vehemently submitted on three issues:whether this tribunal has jurisdiction to determine the Applicant’s Reference and Application; whether the Respondents and their agents should be restrained from alienating or disposing of the Applicant’s goods and property pending the hearing and determination if the Reference; and, whether the 1st Respondent should be injucted from re-letting and taking possession of the suit premises.

10. Submitting on the first issue, he affirmed that the 1st Respondent having agreed that their lease agreement was oral, then it falls under the ambit of section 2 of Cap 301, Laws of Kenya, thus, this honourable Tribunal is clothed with the jurisdiction to hear and determine the reference and application.

11. In disputing Respondent’s disposition that this honourable Court lacks Tribunal due to non-existence of a tenancy relationship, he submitted that, section 2 of Cap 301 encompass persons not in occupation of premises as Tenant. He thus submitted that the issue of occupation is not pertinent in the instant matter before this Court.

12. It was his humble submission that the 2nd Respondent’s proclamation of the Tenant’s goods in the suit premises is unlawful owing to the fact that the Respondent did not obtain the requisite leave of the tribunal to levy distress for rent.

13. Finally, he states in his submission that, pursuant to the provision of Cap 301 Laws of Kenya, a Tenant in a controlled tenancy must be served with a notice in a proper format by the Landlord seeking to terminate tenancy of that kind.

The Landlord’s Submission on Preliminary Notice of Objection dated 1st December 2021

14. The Landlord filled written submissions dated 26th January, 2022 in support of their preliminary objection.

15. They submitted that this Tribunal lacks jurisdiction to entertain this reference, nor notice of motion, and that the proper forum for the Applicant’s grievance should be the civil courts.

16. He submitted on the derivative powers of the tribunal citing sections 12 (1) (a) to (n) of Cap 301. That the Act provides power to the Landlord to recover from the Tenant. It is his submission that there is no corresponding power given to make an order of recovery from the Landlord.

17. It is his submission that the Tribunal lacks jurisdiction to entertain this reference because there no longer exists a Landlord-Tenant relationship between the Applicant and the 1st Respondent for reasons that the Applicant admitted to no longer be in possession of the suit premises.

Analysis and determination

18. I have carefully analyzed all the pleadings and, all relevant evidence adduced before this Honourable Tribunal. Jurisdiction of this Court is in dispute.

19. The first issue for ventilation is whether the order issued by the Magistrate Court in, Kitale Chief Magistrate’s Court Miscellaneous Civil Application No. 40 of 2021 is valid and that suffices in the circumstance. This is informed by the fact that, it is the decision of the said Court, upon which the preliminary objection, contesting jurisdiction, is substantively predicated upon.

20. The 2nd Respondent vide an ex-parte notice of motion dated 24th August 2021, moved the Magistrate’s Court under certificate of urgency seeking among other orders that, the honourable Court be pleased to issue an order allowing him to break into the suit premises and levy distress for rent.

21. The Court, vide the directions on record, on the face of the certificate of urgency, disallowed the prayer of certifying the matter as urgent.

22. I have carefully considered the evidence procured, and in deed find that the same ex-parte application was not served upon the Tenants. Right to be heard is a constitutional right which ought to have been exercised and more so where the forum being moved was not the same forum envisaged by the law. It is not right for litigants to forum shop where the law creates an avenue. I am not in any way sitting on appeal or review of the orders in 40/2021 but I find that orders made where jurisdiction is wanting are no orders at all. I cannot therefore shut the door to the Tenant who has now moved the right forum for protection. This would lead to a miscarriage of justice.

23. I note that the magistrates court proceeded to issue a consent order dated 28th September 2021. The order allowed the 2nd Respondent to proceed with proclamation it is not clear who consented to this order but from the parties it appears to be the Landlord and his auctioneer agent. Another miscarriage of justice. Consequently, the landlord and auctioneer issued a proclamation for goods owned by the tenants and the said proclamation materialized on varied dates from 15th October 2021 when the property of the Tenant was realized.

24. I respectively find that, the sole question for determination is whether the decision of the magistrate Court should suffice, and, whether the said honourable Court was the best suited for determining the issues.

25. With careful observation of the evidence before this honourable Court, I find that, despite certificate of urgency being denied by the honourable magistrate, (implying service be done upon the plaintiffs) the Landlord herein appears to have proceeded ex parte.  The Tenant appears not to have been served or actively involved in the Magistrate’s Court proceedings, in a matter whose outcome had a direct and diverse effect on him. This in my respectively finding is a miscarriage of justice.

26. The Tenant was out rightly denied a chance to be heard as a result of which the doctrine of natural justice, audi alteram partemwas expunged.

27. I also note that, the Tribunals were active at the time of prosecuting this matter in reference by the magistrate court. The honourable Court does not have a concurrent jurisdiction with the magistrates Court. Thus, the Magistrates Court ought to have referred the matter to the Tribunal.

28. Based on the foregoing, it is the contention of the Tribunal that the Landlord’s preliminary objection is premised upon a decision by the Magistrate Court which was unfairly issued by failure to involve the Tenant in the proceedings.

29. The upshot of this finding is that:

a) The Respondents’ preliminary objection dated 18th December 2021 is hereby dismissed.

b) Tenants application dated 11th November 2021 is granted as prayed.

c) The Tenant’s reference dated 11th November 2021 shall be fixed for hearing within 60 days.

d) Rent Inspector does visit the premises in the presence of all parties and do a report in the next 30 days on the status of the premises and rent payment.

e) Costs in cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 4thday ofMarch, 2022 in the presence of Busongafor the Respondentsand in the absence of the Tenants.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL