David Ondimu Kombo v Belcom Agencies Limited [2022] KEHC 1315 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO. 10 OF 2019

DAVID ONDIMU KOMBO...........................................................PLAINTIFF

VERSUS

BELCOM AGENCIES LIMITED............................................DEFENDANT

RULING

Introduction

1. On the 4th May 2021   Belcom Agencies Limited (‘the defendant’) filed a Notice of Preliminary Objection on a point of law on the following grounds;

i. That the court lacks jurisdiction to hear and determine this matter

ii.  That it is the Business Premises Rent Tribunal which has jurisdiction to try and determine this suit

iii. That the suit is frivolous, fictitious, bad in law and an abuse of the court process.

2. The preliminary objection was canvassed by way of written submissions.

Background

3. In a plaint filed on the 15th October 2019 the plaintiff claims that he is the proprietor of land parcel no. Kisii Town/ Block 111/351 (‘the suit property’) and on which stand premises for commercial purposes. That the defendant has been the plaintiff’s tenant occupying the whole premises on the suit property. That the defendant has defaulted in paying rent and is in arrears to the tune of Kshs. 2,500,000/-. That the defendant is also in breach of the lease agreement in that it has sublet part of the suit premises namely a petrol station. That the defendant continues to be in rent arrears after promising to pay for 2 years and in subletting part of the premises. The plaintiff claims that the defendant is in illegal occupation of the premises after the expiry of the pledge to pay. The plaintiff seeks the following orders;

i. An order of declaration that the defendants continued occupation of the suit property after the expiry of the pledge to pay dated 29th August 2019 and continued subletting is illegal.

ii. An order of eviction evicting the defendant, its agents and or/ servant from the suit property.

4. In s defence statement filed on the 19th November 2019 the defendant denies the plaintiff’s claim and that plaint does not disclose any reasonable cause. Without prejudice the defendant admits having a lease with the plaintiff but denies occupying the whole of the premises on the suit property. It avers that it has been paying rent promptly and puts the plaintiff to strict proof. The defendant avers that this court has no jurisdiction to hear and determine the matter.

Submissions

5. The defendant applied relied on the case of The owners of Motor Vessel “Lillian” (S) vs. Caltex Oil (Kenya) Ltd [1989] KLR where the court held that jurisdiction is everything and once a court has no jurisdiction there would be no premises for continuation of proceeding pending other evidence. It was further submitted that the relationship between the plaintiff and the defendant is one of landlord and tenant. The defendant relied on the provisions of Sections 12 and 15 of the Landlord and Tenant (Shops Hotels and Catering) Establishment Act CAP 301 (‘the Act’). The defendant argues that the tribunal established under section 11 of the Act has original jurisdiction to determine whether or not a given tenancy is controlled and to make orders for the recovery of possession and payment of arrears of rent.

6. The plaintiff submitted that the parties entered into a lease agreement whose tenure is for 15 years commencing on the 1st September 2009, which lease is still subsisting. That section 12 of Cap 301 does not apply as the said section deals with powers vested on the Tribunal to deal with controlled tenancies. That the provisions of section 2 of the Act is clear and on what constitutes a controlled tenancy.

7. I have considered the arguments by the parties. It is not in dispute that the parties entered into a lease agreement. The said lease agreement is attached to the plaint. The Term of the lease is 15 years from 1st September 2009. It is a written agreement. Clearly this is not a controlled tenancy. The Act describes a controlled tenancy as follows;

“Controlled tenancy”means a tenancy of a shop, hotel or catering establishment—

(a) which has not been reduced into writing; or

(b) which has been reduced into writing and which—

(i) is for a period not exceeding five years; or

(ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or

(iii) relates to premises of a class specified under subsection

(2) of this section:

Provided that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy;

8. The preliminary objection has no merit and is dismissed with costs to the plaintiff.

DATED, SIGNED AND DELIVERED AT KISII THIS 10TH DAY OF MARCH 2022.

R. E. OUGO

JUDGE

In the presence of;

Plaintiff   Absent

Defendant   Absent

Kevin    Court Assistant