Gondi v Macharia [2025] KEBPRT 281 (KLR)

Gondi v Macharia (Tribunal Case E1273 of 2024) [2025] KEBPRT 281 (KLR) (25 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 281 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1273 of 2024

N Wahome, Chair & Joyce Murigi, Member

April 25, 2025

Between

Brian Otieno Gondi

Tenant

and

Alex Mburu Macharia

Respondent

Ruling

1. This Ruling is on the Tenant’s Application dated the 18th November 2024. The same is anchored on Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) herein after referred to as “the Act”. The Application sought for the following reliefs:-I.That pending the hearing and determination of this application, this Honourable Tribunal be pleased to stay the notice of termination of tenancy of Plot 100 business/Noonkopir T. Centre issued to the Tenant/applicant vide letter dated 5th June 2024. II.That pending hearing and determination of this application, this Honourable Tribunal be pleased to issue orders restraining the landlord/Respondent from interfering with the Tenant/applicant’s peaceful use and enjoyment of the said suit premises.III.That pending the hearing and determination of the reference herein, this Honourable Tribunal be pleased to stay the notice of termination of tenancy of plot 100 Business/Noonkopir T. Centre issued to the Tenant/Applicant vide letter dated 5th June 2024. IV.That pending the hearing and determination of the reference herein, this Honourable Tribunal be pleased to issue orders restraining the Landlord/Respondent from interfering with the Tenant/Applicant’s peaceful use and enjoyment of the said suit premises.V.That this Honorable Tribunal be pleased to grant such orders as it deems fit to grant in the circumstances.VI.That costs be provided for.

2. The application was filed together with the reference dated 18/11/2024 which sought for the following orders:-i.That the Tribunal makes a finding that the landlord is in breach of the lease agreement to the extent of his refusal to refund the Tenant’s goodwill.ii.That an order do issue compelling the Landlord to refund the Tenants goodwill of Kshs.600,000/- before the termination of the lease agreement.iii.That interest at court rates do apply on II above from the date of judgment until payment in full.iv.Costs be provided for.

3. We have endevoured to list all the prayers in both the application and in the reference for ease of identification of the issues that are for determination and orders that may ensue therefrom.

4. Upon perusal of the reference and the notice of motion application both dated 18/11/2024, the replying affidavit sworn on the 3/12/2024, the Tenant’s supplementary affidavit sworn on the 1/2/2025, the landlord’s supplementary Replying Affidavit sworn on the 5/2/2025, the Tenant’s submissions and the list of authorities both dated 21/2/2025 and the authorities thereof and finally the landlords submissions and list of authorities both dated 6/2/2025 and the authorities thereof, we are of the view that the only issues that emerge for determination in this matter are the following:-i.Whether the Tenant’s application dated 18/11/2024 has merit.ii.Who should bear the costs of these proceedings.

5. On the first issue of whether the Tenant’s Application has merit, we draw regard to paragraphs 11,12,13,14,15 and 16 of the Tenant’s supplementary affidavit sworn on the 1/2/2025 and draw the conclusion that the Tenant is no longer in possession of the demised premises and that there is no longer in subsistence a Landlord and Tenant relationship perse.

6. This position is restated in the Tenant’s submissions dated 21/2/2025 where at paragraph 31 it was submitted as follows:-“Additionally, the Tenant/applicant has demonstrated the constructive eviction from the suit premises in early January, 2025, and it would therefore amount to unjust enrichment for the landlord/Respondent to demand rent for January and February while fully aware that by his actions, he forced the tenant to vacate the suit premises not withstanding the pendency of interim orders by this Honourable court”.

7. It is our view that with the orders issued by this court on the 19/11/2024, the Tenant had remained entitled to the suit premises and would most likely have successfully executed contempt and compensation proceedings against the landlord. He however seem contended with his irregular eviction from the demised premises and has asserted as much in his aforesaid supplementary affidavit and submissions.

8. In view of the termination of the relationship between the parties as unequivocally admitted by the Tenant, this court’s wherewithal to superintend over this matter in ousted. In this, we rely on the case of Pritam – vs- Ratilal & Another (1972) EA 560 where the then court of Appeal of East Africa held that:-“Therefore the existence of the relationship of Landlord and Tenant is a pre-requisite to the application of the provisions of the Act. Where such a relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by the Tribunal, otherwise the Tribunal will have no jurisdiction. There must be a controlled tenancy to which the provisions of the Act may be made to apply. Outside it the Tribunal has no jurisdiction”.

9. Having that in mind, it then follows that we are incapacitated from addressing all the emerging issues from both the pleadings and the submissions by the parties. We also note that the parties confined themselves to matters that were largely to be for consideration during the hearing of the reference and only addressed the issues in the Application under review in passing.

10. Without jurisdiction and the issue having come to the notice of the court, we are called upon to down our tools and do no more in this matter. in this, we put reliance on the case of the Owners of Motor Vessel “Lillians S” – vs- Caltex Oil (Kenya) Ltd (1989) eKLR where the court of Appeal (Nyarangi J) as he then was held that:-“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 the moment it holds the opinion that it is without jurisdiction……where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”.

11. We however observe that on the Tenant being issued with the termination notice dated 5/6/2024, he responded by his letter dated 17/6/2024 and agreed to the termination notice which was to take effect on or about the 5/12/2024. Issues arose only on the question of refundability of the Kshs.600,000/- paid as goodwill. But in coming to court tenant over and above the claim for the refund of goodwill, also sought for orders to be allowed quiet possession of the demised premises.

12. We do agree that at that point in time, this court was vested with the requisite authority to consider both the questions of the legality of the termination notice dated 5/6/2024 and also that of the refundability of the goodwill. Section 12(1) (L) of the Act provides that among the powers of this court is to:-“Award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the Tenant with the Landlord’s consent”.

13. Though we would not wish to interrogate the legitimacy of the Tenant’s claim on refund of goodwill or even the legality of the notice of termination dated 5/12/2024 in view of want of jurisdiction, we however doubt the legality of the notice of termination in view of the provisions of Section 4 (2) and 7(1) of the Act as read together with Regulation 4(1) of the Regulations to the Act.

14. In our view also, goodwill should generally be refundable unless otherwise dictated by a mutual contractual arrangement between the parties. In this, we fully associate ourselves with the interim determination of the issue in the case of Bia Tosha Distributors Limited – vs- Kenya Breweries Ltd and 3 Others (2016) eKLR.

15. Be that as it may, we are divested of authority to decide on the twin issues and would therefore proceed to strike out both the reference and notice of motion application dated 18/11/2024. The Tenant has however other avenues and in particular in our civil and commercial courts to have his grievances on the loss of the Tenancy and for the refund of the claimed goodwill addressed.

16. On the issue of costs, we appreciate that the Tenant came to court for its intervention against interference with his quiet possession and for refund of goodwill paid to the landlord. What we infer from the record is that there was continued interference against the orders of this court and which compelled the Tenant to vacate the demised premises. To the tenant, this was constructive eviction and we agree with him. In that regard we would invoke the provisions of Section 12(1) K of the Act and award costs to the Tenant.

17. In the final analysis, the orders that commend to us are the following:-i.That the reference and notice of motion application both dated November 18, 2024 are struck out for want of jurisdiction.ii.That the Tenant is awarded costs assessed at Kshs.50,000/-.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25THDAY OF APRIL, 2025. HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of Liyala Eric for the Landlord and Mr. Akenga Kiganda for the Tenant/Applicant.HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.