Dusman Investment Co. Limited v United Systems Intergrators EA Africa Limited [2022] KEBPRT 75 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E613 OF 2021 (NAIROBI)

DUSMAN INVESTMENT CO. LIMITED.......APPLICANT/LANDLORD

VERSUS

UNITED SYSTEMS INTERGRATORS E.A

AFRICA LIMITED.................................................TENANT/RESPONDENT

RULING

1. The Landlord’s/Applicant’s application dated 26th October 2021 seeks orders declaring the tenancy between the parties herein terminated and further orders allowing the Landlord to break into the suit premises for the purposes set out in prayer 3 of the said application.

2. The affidavit in support of the application states that the lease period for the suit premises which was for six years has lapsed and the premises remain closed since the expiry of the lease.  It is further stated in the said affidavit that the Tenant who is of Ethiopian origin cannot be found nor reached on his cell phone.

3. Does the Tribunal have jurisdiction to issue the orders sought by the Applicant?  Is the tenancy between the parties herein a controlled tenancy?  The tenancy between the parties is admittedly for a period of six years.  This is well beyond the period of five years and beyond what is provided for in controlled tenancies.  There is further an admission by the Landlord that the Tenant has locked the premises and “absconded”.  It is therefore clear that the Landlord has nor received any rent after the tenancy between the parties lapsed.  No controlled tenancy has thus been created.

4. A 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

c. Is for a period not exceeding five years or

d. Contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof or

e. Relates to premises of a class specified under subsection (2) of this section.

5. I have seen the letter of lease dated 21st March 2013 annexed to the Applicant’s affidavit.  the said letter forms the basis of the agreement between the parties herein.  It does not contain provisions for termination otherwise than for breach of covenant within five years from its commencement.  The tenancy agreement between the parties does clearly not fall within the definition under section 2 of Cap 301 set out above.

6. It is therefore my finding that through I am alive to the fact that the application by the Landlord is not opposed, the Tribunal has no jurisdiction to issue the orders sought by the Applicant/Landlord.

7. Consequently, the application dated 26th October 2021 is dismissed with no orders as to costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON GAKUHI CHEGE (VICE CHAIR) THIS 1ST DAY OF FEBRUARY IN THE PRESENCE OF MORIASI FOR THE APPLICANT/LANDLORD AND IN THE ABSENCE OF THE TENANT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL