Githae v Prestige Management Valuers Ltd & 3 others [2022] KEBPRT 823 (KLR)

Githae v Prestige Management Valuers Ltd & 3 others (Tribunal Case E618 of 2022) [2022] KEBPRT 823 (KLR) (14 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 823 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E618 of 2022

Andrew Muma, Vice Chair

October 14, 2022

Between

Jacinta Mukami Githae

Applicant

and

Prestige Management Valuers Ltd

1st Respondent

Cash Crop Auctioneers

2nd Respondent

David Kimani Maina

3rd Respondent

Peter Gathogo Mashara

4th Respondent

Ruling

A. Parties and Representatives 1. The applicant Jacinta Mukami Githae is the tenant and rented space on the suit property situated at Lumumba Drive Roysambu Shop No G1 (hereinafter known as the ‘tenant’)

2. The applicant /tenant appears in person in this matter.

3. The 1st respondent Prestige Management Valuers is the alleged landlord and director of the 1st respondent company and rented out space for the business in the suit property

4. The firm of Wanyoike & Macharia Advocates represent the respondent/landlord in this matter. wanyoikemacharia@wmadvocates.com

B. The Dispute Background 5. The tenant/applicant moved this tribunal by way of reference and a notice of motion application dated July 13, 2022 under section 12(4) of the Landlordsand Tenants (Shops, Hotelsand Catering) Establishments Act cap 301. The tenant was seeking amongst other orders that pending the hearing and determination of the reference that the tribunal be pleased to give orders restraining the landlord from proclaiming their goods, evicting them and orders compelling them to reconnect electricity.

6. The landlord has in opposition to the said reference and application filed a preliminary objection dated July 20, 2022 questioning the jurisdiction of the tribunal on the grounds that the lease does not amount to a controlled tenancy and that they are not parties to the agreement.

C. Jurisdiction 7. The jurisdiction of this tribunal is in dispute.

D. The Tenant’s Claim 8. The tenant filed a reference and notice of motion application dated July 13, 2022 which pleadings form the basis of this claim.

9. The tenant has also filed a supplementary affidavit dated September 13, 2022.

E. The Landlord’s Claim 10. The landlord has filed a preliminary objection and a replying affidavit dated July 20, 2022 questioning the Jurisdiction of the tribunal.

11. Parties have filed submissions and the matter was fixed for ruling on October 14, 2022.

F. List of Issues for Determination 12. It is the contention of this tribunal that the issues raised for determination are as follows;Whether the tribunal has the Jurisdiction to determine the issues raised?

G. Analysis and Findings Whether the Tribunal has Jurisdiction to determine the issues raised? 13. It is clear that in exercising the powers conferred under the Landlord And Tenant (Shops, Hotels and Catering Establishments) Act, this honourable court must restrict itself to the powers conferred to it under section 12 of the said act. The jurisdiction of this tribunal as espoused under the provisions of section 12 limits the jurisdiction of this Tribunal to dealing with disputes emanating from controlled tenancies.

14. Section 2 of cap 301 defines 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;

15. In the present case, the tenant alleges in their supplementary affidavit that they have been occupying the premises at Lumumba Drive Shop under a written lease agreement for a term of two years. They further provide that the lease expired in 2021 and was renewed for a further term of two years until 2024.

16. In response to this, the landlord has filed a preliminary objection and a replying affidavit in which they claim that the tribunal lacks Jurisdiction on the grounds that the lease agreement is for a fixed term of 5 years and 3 months, which does not amount to a controlled tenancy. Further they have alleged that there exists no tenancy relationship between themselves and the applicant s since they are not parties to the lease agreement.

17. Having perused the documents presented by the landlord, in particular the lease agreement dated May 22, 2019, I have observed that the lease is for a term of 5 years 3 months and additionally the lease does not have a termination clause.

18. Further, the tribunal takes note of the fact that the respondents in the present case are not parties to the said lease agreement. The landlord is stated as one Ms Grace Wanjiku Mithamo who is not a party to the proceedings before this tribunal. The tenant has not provided before this tribunal the alleged two years lease agreement between themselves and the respondents herein.

19. Having analyzed the above, the tribunal is of the opinion that the there is a need to interrogate who the present respondents, David and Peter are and what their relationship is to both the tenant, Jacinta Mukami and Grace Mithamo the landlord as per the lease agreement.

H. Ordersa.The upshot is that the landlord’s preliminary objection dated July 20, 2022 is hereby dismissed.b.Grace Mithamo is enjoined to this cause as an interested party and the tenant shall serve her with a hearing notice.c.The tenant’s reference shall be fixed for hearing on November 28, 2022. d.Status quo shall be maintained.

HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A MUMA THIS 14TH DAY OF OCTOBER, 2022 IN THE PRESENCE OF JACINTA MUKAMI TENANT IN PERSON AND NZILANI HOLDING BRIEF FOR NJOROGE FOR THE LANDLORD.HON A MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL