Gichunuku & another v Mwaura [2024] KEBPRT 363 (KLR)

Gichunuku & another v Mwaura (Tribunal Case E834 of 2023) [2024] KEBPRT 363 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 363 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E834 of 2023

Gakuhi Chege, Chair & J Osodo, Member

March 7, 2024

Between

Josphat Gikundi Gichunuku

1st Applicant

Jackline Muthue Muthoka

2nd Applicant

and

Allan Kamau Mwaura

Respondent

Ruling

1. By a notice of preliminary objection dated 22nd September 2023, the landlord moved this Tribunal seeking for dismissal of the tenant’s case in limine on the following grounds;i.The Honorable Tribunal has no jurisdiction to hear and determine the matter as the same offends Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (CAP 301);ii.The Honorable Tribunal has no Jurisdiction to hear and determine this reference as the same offends Section 12 of CAP 301 on the powers of the tribunal;iii.The Honorable Tribunal lacks jurisdiction to hear and determine this reference as it pertains to an uncontrolled tenancy.iv.The reference herein is fatally defective and ought to be struck out with costs to the Respondent.

2. The preliminary objection was directed to be disposed of by way of written submissions and both parties complied. The landlord’s counsel’s submissions are dated 16th November 2023 while those of the tenant’s counsel are dated 29th January 2024.

3. The Tenants/Applicants approached this court through a reference and motion dated 28th August 2023 seeking orders to restrain the Respondent from evicting them from land parcel L.R. No. Dagoretti/Kangemi/291. The Landlord responded thorough a Preliminary Objection dated 22nd September,2023.

4. The Landlord’s Counsel submits that the parameters for consideration of a valid preliminary objection were set out in the celebrated case of Mukisa Biscuits Manufacturing Ltd. -Vs- West End Distributors which was cited in Kenneth Kinoti Muriuki & 5 others v Dinara Developers Limited & Another [2020] eKLR thus:-“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."

5. The Jurisdiction of this Tribunal is limited to a controlled tenancy which is defined under Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act thus:“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;”

6. The Landlord in this case objects to the jurisdiction of the Tribunal for the reason that the lease agreement between him and the tenants dated 11th November 2019 is for a period of 9 years and does not contain a provision for termination otherwise than for breach of covenant within 5 years of commencement. The landlord relies on annexure ‘JGG 1’ attached to the 1st tenant’s supporting affidavit. The lease is dated 11th November 2019. At paragraph 3 of the said lease, it provides for a period of 9 years commencing from 15th February 2020 to 15th February 2031.

7. The Landlord relies on the decision in the case of Owners of Motor Vessel “Lillian S” Vs Caltex Oil Kenya limited (1989) eKLR where it was held as follows:“Jurisdiction is everything without it, a court has no power to make one more step. Where a court has no Jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it in the moment it holds the opinion that it is without Jurisdiction…where it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

8. The landlord also cites the Supreme Court decision in Republic Vs Karisa Chengo & 2 Others (20170 eKLR where it was held as follows;“By Jurisdiction is meant the authority which the court has to decide- matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics...Where, a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given".

9. The Tenant’s counsel in response to the preliminary objection cites in extenso the provisions of Sections 2 & 12 of Cap. 301 on the definition of a controlled tenancy reproduced above and the powers of this Tribunal in adjudicating matters before it and concludes that it has power to hear and determine the reference before it under Section 12(4) of the said Act. The tenants further rely on the cases of Mukisa Biscuits Manufacturing Co. Limited Vs West End Distributors Limited (supra) on what constitutes a preliminary objection, the case of Independent Electoral and Boundaries Commission Vs Jane Cheperenger & 2 others (2015) eKLR on the objective of preliminary objections and the case of Owners of Motor Vessel ‘Lillian S’ Vs Caltex Oil (K) limited (supra) on what steps a court should take where it finds that it is without jurisdiction and urges us to find that we have jurisdiction to hear and determine the dispute herein.

10. We have looked at the lease marked as annexure “JGG 1” attached to the supporting affidavit of the 1st tenants sworn on 28th August 2023 and noted that it is for term of 9 years from 15th February 2020 to 15th February 2031. It has no termination clause within the first 5 years and it is therefore not a controlled tenancy within the meaning and interpretation of Section 2(1) of Cap. 301, Laws of Kenya.

11. Consequently, we find and hold that the landlord’s preliminary objection is well taken and the same is therefore allowed in its entirety. The tenants’ reference and application dated 28th August 2023 are hereby struck out.

12. Costs of every action before this Tribunal are at its discretion under Section 12(1)(k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. We have no reason to deny costs to the Landlord.

13. In conclusion, the following final orders commend to us:a.The landlord’s notice of preliminary objection dated 22nd September 2023 is hereby upheld.b.The tenants’ reference and application dated 28th August 2023 are hereby struck out with costs to the landlord.c.The interim orders earlier given on 30th August 2023 are hereby discharged.d.The landlord’s costs are assessed at KES 30,000/=.It is so ordered.

DATED, SIGNED & VIRTUALLY DELIVERED THIS 7TH DAY OF MARCH 2024HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON JOYCE A OSODO - PANEL MEMBERIn the presence of:- Both parties Counsel