David Ngugi v Francis W. Kariuki [2021] KEBPRT 196 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 43 OF 2021 (NAIROBI)

DAVID NGUGI.....................................................TENANT/APPLICANT

VERSUS

FRANCIS W. KARIUKI............................LANDLORD/RESPONDENT

RULING

1. The notice of preliminary objection by the Respondent/Landlord is in the following terms;

That the honourable Tribunal does not have jurisdiction to hear and determine this matter as the lease agreement between the Landlord and the Tenant expired on 1st March 2021and there is no longer any relationship between the Landlord and the Tenant.

2. The parties have filed their submissions in support of and in opposition to the notice of preliminary objection respectively.  I proceed to summarize the said submissions as follows;

3. The Landlord’s Submissions are to the effect;

a. That the lease between the Landlord and the Tenant came to an end on 1st March 2021.  The jurisdiction of the Tribunal therefore no longer exists.

b. That the preliminary objection raised herein is on a pure point of law, namely the jurisdiction of the Tribunal in hearing and determining this matter.

c. That the lease between the parties herein was for a fixed period of three (3) years from 1st March 2018 to 1st March 2021.  It was to expire by effluxion of time.

d. That the Landlord did not renew the lease between him and the Tenant, ending the Tenant/Landlord relationship.

e. That if a dispute is to be brought under Cap 301, there has to be in existence a Landlord/Tenant relationship for the jurisdiction of the Tribunal to apply.

f.That upon termination of the lease, the Tribunal became functus officio.

g. That even though jurisdiction existed initially, the same no longer exists as the legal relationship between the parties has been extinguished.

4. The Tenant’s Submissions are to the effect that;

a. That the notice of preliminary objection dated 3rd May 2021 is frivolous, incompetent and an abuse of the court process.

b. The preliminary objection does not raise a pure point of law.

c. The preliminary objection is not pleaded as the Respondent has not filed any response to the application dated 7th April 2021.

d. The lease alleged to have expired on 31st March 2021 has not been annexed by the Respondent.  The expiry or otherwise of the said lease is a matter of fact to be proved by evidence and scrutiny of the lease.

e. The existence of the Landlord/Tenant relationship or the lack thereof is factual and subject to proof.

f. The Tenant has not been served with any notice of termination of the tenancy.

g. That the preliminary objection ought to have raised a point of law that has been pleaded.

h. That the preliminary objection filed by the Respondent is only intended as a sword to win this case which would otherwise be judicially resolved on merits.

5. The Tenant, at paragraph 3 of his supporting affidavit sworn on (no date) but filed/received at the Tribunal on 13th January 2021 states as follows;

“That I have renewable 3 years’ lease agreement with the Landlord commencing 1st March 2018 until 1st March 2021. ”

6. This position is held as common as between the parties as the Landlord/Respondent does not dispute the same in his submissions.

7. The reference herein was filed on 13th January 2021.  The Tribunal had jurisdiction to hear this matter when the same was filed as it was way before March 2021.  The Tenant’s complaint then can be traced to ground c of the application dated 13th January 2021 where the Tenant states;

“Despite the existence of the lease, on 30th December 2020, the Landlord unlawfully and or illegally and without any reasonable cause locked the Tenant’s premises and to date he has refused to open the same causing the Tenant to undergo substantial loss”.

The same complaint is reproduced at paragraph 6 of the supporting affidavit I have referred to above.

8. The existence of the lease agreement between the parties and the term of the said lease agreement is not a matter that requires to be ascertained.  It is a matter which requires no production of evidence as it is agreed as between the parties.

9. That being so, the issue would be, what is the status of the tenancy relationship between the parties herein after 1st March 2021 when the lease expired by effluxion of time?

10. I have gone through the pleadings filed by the Tenant/Applicant and I have not seen any renewal of the lease after 1st March 2021.  I have further not seen any evidence of payment of rent by the Tenant and the acceptance thereof by the Landlord after 1st March 2021.  The Tenant’s insistence and submissions that the Landlord has not exhibited the lease agreement he is stating to have expired is self-defeating as the Tenant himself has annexed the lease agreement to his affidavit.  The Landlord has not disputed the existence of the said agreement.

11. The Tenant has submitted that the expiry or otherwise of the lease is a matter of fact which ought to be proved by the production of evidence.  One needs not look any further than the Tenant’s affidavit to find this proof.  The Tenant cannot be said to have been denied an opportunity to respond factually to a set of facts presented by himself!

12. In the absence of a renewal of the lease agreement between the parties herein, I do find that the lease agreement between the Landlord and the Tenant herein expired on 1st March 2021.  Upon the said expiry, it was incumbent upon the Tenant to give vacant possession.  The Landlord having not continued to receive any rent from the Tenant after the expiry of the lease agreement, I do further find that there no longer exists any Landlord/Tenant relationship between the two parties and the Tribunal has ceased to have any jurisdiction in the matter.

13. I have already observed that the Tribunal had jurisdiction when this matter was filed in January 2021 but that jurisdiction was ousted on 1st March 2021 when the lease agreement between the parties herein expired and was not renewed and no rent was paid and/or accepted by the Landlord from the Tenant.

14. The holding of the High Court in the case of Republic Vs Business Premises Rent Tribunal & Another ex-parte Davies Motor Corporation Limited [2013] eKLRdealt with this issue when it stated;

“If at the time of the delivery of its decision there was no longer a Landlord/Tenant relationship between the Applicant and the interested party, then it would follow that the Respondent ceased to have any jurisdiction in the matter and as soon as it became known that it had no jurisdiction, it ought to have downed its tools.”

15. I am guided by the above holding of the learned Judge.  I am in agreement that this is the right time to down my tools in this matter.  The agreement between the parties expired on 1st March 2021 as per the agreement between the parties, the Tribunal cannot extend the term of the agreement as it cannot rewrite the same on behalf of the parties.  The parties are bound by their agreement.  That being the case, the Tenant cannot demand of the Landlord to issue him with a notice to terminate a tenancy which has itself terminated by effluxion of time.

16. I therefore do find merit in the Landlord’s notice of preliminary objection dated 3rd May 2021 and I allow the same by issuing the following orders;

a. That this Tribunal does not have the jurisdiction to hear and determine this matter.

b. That the case having been filed when the Tribunal had jurisdiction and which jurisdiction has since been ousted, the Tenant’s reference (undated) filed in the Tribunal on 13th January 2021 is hereby dismissed with no order as to costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this13thday of October 2021 in the absence of the parties.  Parties to be noticed by the registry.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL