Erasim Security Services Ltd & 2 others v Makanjawa Company Ltd [2022] KEBPRT 733 (KLR)

Erasim Security Services Ltd & 2 others v Makanjawa Company Ltd (Tribunal Case E333 of 2022) [2022] KEBPRT 733 (KLR) (Civ) (16 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 733 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E333 of 2022

Andrew Muma, Vice Chair

September 16, 2022

Between

Erasim Security Services Ltd

1st Applicant

Alex Omondi Oyata t/a Imara Swim Steps

2nd Applicant

Wattle Park Ventures Ltd

3rd Applicant

and

Makanjawa Company Ltd

Respondent

Ruling

Parties and Representatives 1. The 1st applicant Erasim Security Services is the objector and has opposed the proclamation by the Landlord of the tenant’s goods. (hereinafter known as the ‘objector’)

2. The firm of Geoffrey Otieno & Co. Advocates represent the Applicant/Objector in this matter. geoffreyotienoadvo@gmail.com

3. Wattlepark Ventures Ltd is the tenant and rented out space for the business in the suit property situated within L.R No. 17/261. (hereinafter the “Tenant”)

4. The firm of Benchi & Co. Advocates represent the Tenant in this matter. benchadvocates233@gmail.com

5. The Respondent is the Landlord and rented out space to the Tenant in the Suit Property situated on L.R No. 17/261 (hereinafter the “Landlord”)

The Dispute Background 6. The Landlord and the Tenant entered into a tenancy agreement on 1st December 2019 over the suit property.

7. That on 4th April 2022 the Landlord instructed Mbusera Auctioneers to visit the premises and proclaim the Tenant’s goods in an attempt to distress for rent for arrears owed to them by the tenant. The Tenants filed a certificate of urgency dated 9th July 2022 which was later withdrawn though it had a notice to cross-examine Mwangi Munjoga Advocate that aside.

8. The objectors have since filed a notice of motion application dated 21st July 2022 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301 as well as Order 22 Rule 51 of the Civil Procedure Rules. The objector was seeking amongst other orders that pending the hearing and determination of the reference that the tribunal be pleased to lift the proclamation notice dated 12th July 2022 on the grounds that the properties belong to the objectors and not the tenant.

9. The Court pronounced itself on 28th July 2022 where it dismissed the objector’s application dated 21st July 2022.

The Tenant and the Objector’s Claim 10. The Tenant filed a reference dated 20th April 2022 and a notice of motion application dated 18th April 2022 to which he obtained interim reliefs.

11. The Objector filed a notice of motion application and a notice of objection dated 21st July 2022 which pleadings form the basis of this claim.

The Landlord’s Claim 12. The Landlord has filed a replying affidavit dated 31st May 2022.

13. The Landlord has also filed grounds of opposition dated 31st May 2022.

14. The Tribunal gave orders on 2nd June 2022 requiring the Tenant to pay rent for the Months of April, May and June 2022.

15. The Tribunal issued a ruling on 28th July 2022, dismissing the objector’s application dated 21st July 2022.

16. The Landlord has filed a preliminary objection opposing the jurisdiction of the Tribunal, however the same has not been availed before the Tribunal.

List of Issues for Determination 17. It is the contention of this Tribunal that the issues raised for determination are as follows;I. Whether the Tribunal has Jurisdiction to determine the matter?

Analysis and Findings Whether the Tribunal has jurisdiction to determine the issues raised? 18. As presented above this matter was before me when the Tribunal has earlier pronounced itself on the issue of the objection notice filed by the objectors in the application dated 21st July 2022.

19. My attention was drawn to a preliminary objection on jurisdiction raised by the Landlord. I have tried to locate the same as well as the submissions thereto in vain. I am however guided by the fact that a question on Jurisdiction can emanate from the Court on its own motion (suo motto) as without jurisdiction I have no legal leg to stand upon.

20. I have taken the liberty to read the 10 year lease dated 1st December 2019 between both parties. It is a closed lease without any interruption and/or a termination clause.

21. We have held severally before, as provided under Section 2 of Cap 301 that we deal with leases of 5 years and below only, unless circumstances arise bringing the leases of above 5 years within our mandate which in most cases would be the existence of a termination clause.

22. Unfortunately, this particular lease has no such circumstances. I therefore find that I have no jurisdiction and I down my tools.Ordersa.The upshot is that the Tribunal has no jurisdiction and the matter stands dismissed with costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 16TH DAY OF SEPTEMBER, 2022 IN THE PRESENCE OF GITHINJI FOR THE LANDLORD AND BENJI FOR THE TENANT/APPLICANT.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL