Elphas Oyugi v Signature Bar and Restaurant [2021] KEBPRT 224 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 79 OF 2021 (MOMBASA)

ELPHAS OYUGI..........................................................................APPLICANT/TENANT

VERSUS

SIGNATURE BAR AND RESTAURANT.......................RESPONDENT/LANDLORD

RULING

1. Through a motion dated 23rd March 2021, the Tenant/Applicant moved this Tribunal seeking in material part that possession of the catering space be given back to him pending hearing and determination of the case.

2. He further seeks that in the alternative, the Landlord pays to him 2 months loss of income into a joint interest earning account pending the hearing and determination of the case.

3. The tenant is also seeking that the Landlord/Respondent be prohibited from unlawfully evicting the tenant pending the hearing and determination of this case.

4. It is further sought to restrain the Landlord from unlawfully distraining for rent and that the Landlord be ordered to give accounts of rent paid and due.

5. The application is supported by the Tenant’s affidavit sworn on 23rd March 2021 and the grounds set out on the face of the application.

6. The Tenant is the owner of a catering business that was situated within the Landlord’s establishment from which he was evicted on 19th March 2021 unlawfully without notice and his tools of trade thrown out.

7. The tenancy had not been reduced into writing and as such the same was controlled.

8. On the evening of 10th March 2021 at about 7. 22p.m., an employee of the Landlord known as Andrew Odongo alias Alego sent a text message to the Tenant/Applicant not to pay rent for the following day. This according to the Tenant was not a tenancy notice required under the law.

9. On 19th March 2021, the Tenant was removed from the premises by the Landlord to make space for another tenant. This was reported at the Central Police Station, Mombasa.

10. A demand letter marked “E.O2” was written to the Landlord seeking his restoration and compensation for loss of income. The said demand was ignored by the Landlord.

11. The Tenant therefore claims compensation for the loss occasioned by the said eviction against the Landlord.

12. The application is opposed through a replying affidavit of one Andrew Odongo Alego on behalf of the Respondent in which it is claimed that the applicant was a licencee to carry out catering services within the Respondent’s establishment paying daily charges for use of the facility.

13. The Respondent denies that the applicant was a tenant and that it was not the Landlord but as Tenant with a lease from the Landlord which forbids subletting and subleasing marked “AA1”.

14. The Respondent therefore deny existence of a Landlord/Tenant relationship and a such contends that this Tribunal has no jurisdiction to vary or alter any terms of the unwritten licence.

15. The applicant was paying Kshs.5000/- per day and not monthly as there was no Landlord/Tenant relationship between them and no notice was required to terminate the relationship.

16. It is the Respondent’s contention that the issues raised herein can only be determined by a civil court and that the Applicant was in arrears of daily payments in the sum of Kshs.720,000/- which occasioned withdrawal of the licence.

17. The application was ordered to proceed by way of written submissions and both parties complied with the direction. I have considered the pleadings and the submissions and identify the issues for determination as follows:-

(a) Whether there was a Landlord/Tenant relationship by the time of the instant proceedings.

(b) Whether this Tribunal has jurisdiction to grant the reliefs sought.

18. I have examined the record and pleadings filed by both parties vis a vis the provisions of Cap. 301, Laws of Kenya and find that the Act does not make any distinction between a tenancy and a licence.

19. 1t is common ground that the applicant was granted accommodation by the Respondent and was paying a daily fee or rent of Kshs.5000/- to it. The relationship was not in writing and even though the Respondent contends that the lease entered into between it and the Landlord did not allow subletting, there is no other way of seeing its relationship with the applicant other than that the latter was its subtenant.

20. As far as this Tribunal’s jurisdiction is concerned, I find that the same was ousted after the tenant was unlawfully evicted by the Landlord from the suit premises. I am persuaded by the decisions cited by the Respondent’s counsel in the case of Michael Gachie Mwarangu –vs- Peter Gichuru Maina & 2 others (2016) eKLR and Republic – vs- Business Premises Rent Tribunal & another exparte David Motors & another (1972) EA 560 in that regard.

21. I find and hold that upon the illegal eviction of the applicant, the only recourse available to him is to file an ordinary civil suit before the subordinate court for compensation.

22. I entirely agree with the Respondent’s submission that this Tribunal has no jurisdiction to reinstate a dispossessed tenant under Section 12(1) (e) of cap. 301, Laws of Kenya. I am in this regard relying upon the decision in the case of Re Hebtulla Properties Ltd (1979) eKLR at page 4/11 where the Tribunal’s powers under the said section was discussed as follows:-

“The Specific powers include (paragraph (e), the power to make an order for the recovery of possession from a tenant or indeed from any person in occupation. Such an order would be an order made on the application of the Landlord. No corresponding power is given to make an order on the application of a tenant who has been forcibly dispossessed by a Landlord”.

23. In the premises, I am unable to exercise jurisdiction in the instant case to reinstate the evicted tenant as such matter should be dealt with through ordinary civil proceedings.

24. I therefore find and hold that this Tribunal has no jurisdiction to grant the reliefs sought.

25. I therefore proceed to make the following final orders in this matter:-

(a) The application dated 23rd March 2021 is hereby dismissed for want of jurisdiction.

(b) In view of the foregoing findings on illegal eviction carried out against the Applicant, each party shall bear own costs.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 17TH DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Rimunya for Tenants/Applicants

Miss Nyaga for the Respondent