Good Earth Group Limited v Modways Investment Limited [2022] KEBPRT 92 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E495 OF 2021 CONSOLIDATED WITH E494 OF 2021 (NAIROBI)

THE GOOD EARTH GROUP LIMITED..............................................TENANT/APPLICANT

VERSUS

MODWAYS INVESTMENT LIMITED.....................................LANDLORD/ RESPONDENT

RULING

A.  Parties and Representatives

1.   The Tenant The Good Earth Group Limited rented space on LR No 209/11616 Nairobi for the business (hereinafter known as the ‘Tenant’).

2.   The firm of Gitahu & Kaburu Advocates represent the Tenant/Applicant in this matter. info@gkadvocates.co.ke

3.   The Landlord/Respondent is the Landlord and owner of LR No. 209/11616 rented out to the tenants (hereinafter the Landlady).

4.  The firm of P.M Ndung’u & Co. Advocates represent the Landlord/Respondent in this matter. advocate@pmndungu.com

B.  The Dispute Background

5.  On 13th September 2021 the Tenant moved this Tribunal by way of a notice of motion dated 13th September 2021 under certificate of urgency under Section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking amongst other orders that pending the hearing and determination of the application that the Tribunal order the Landlord/Respondents be jointly and severally restrained from interfering with the Applicant’s peaceful enjoyment of the premises.

6.  On 13th September 2021the Tribunal ordered that the Respondent be restrained from interfering with the peaceful enjoyment of the Tenant in the premises.

C.  Jurisdiction

7.  The jurisdiction of this Tribunal is in dispute.

D.  The Tenant’s Claim

8. The Tenant filed a notice of motion application under certificate of urgency and supporting affidavit dated 13th September 2021 which pleadings form the basis of this claim.

9.   The Tenant obtained restraining orders as against the Landlord on 14th September 2021 and to date the Landlord is still restrained from interfering with the Tenant’s peaceful enjoyment pending the hearing and determination of this application.

E.   The Landlord’s Claim

10. The Landlord has filed a replying affidavit and raised the issue of jurisdiction and annexed the lease agreement between themselves and the Respondent.

11. Parties have filed submissions and the matter was fixed for ruling on 31st January 2022.

F.   List of Issues for Determination

12. It is the contention of this Tribunal that the issues raised for determination are as follows;

a)   Whether the Tribunal has jurisdiction under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to investigate the complaint raised by the Tenant?

G.  Analysis and Findings

Whether the Tribunal has jurisdiction under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya to investigate the complaint raised by the tenant?

13. Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that;

“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord or the Tenant, and may make such order thereon as it deems fit”

14. The above provision allows the Business Premises and Rent Tribunal to in addition to the powers conferred upon it by the Act investigate on any other matters that may be raised in relation to a controlled tenancy.

15. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 2defines a controlled tenancyas;

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;

16. In this case the Landlord in their replying affidavit claims that the Tribunal lacks jurisdiction based on the fact that the tenancy agreement between themselves and the Tenant was for a period of six years and as such it is not a controlled tenancy

17. The Landlord annexed in their replying affidavit a copy of the tenancy agreement marked JS3which states that they entered into a tenancy agreement on 1st April 2017 for a period of six years expiring on 31st March 2023.

18. Section 12(1)(a) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya provides that;

A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—

(a) to determine whether or not any tenancy is a controlled tenancy

By virtue of this provision the Tribunal has the jurisdiction to investigate whether the relationship between the Tenant and the Landlord satisfies all the requirements to be deemed as a controlled tenancy.

19. I have perused the tenancy agreement provided and I am satisfied that it is a fixed term lease not within the purview of this tribunal as the term of the lease exceeds a period of five years.

20. Based on the foregoing it is the contention of this Tribunal that it is not clothed with jurisdiction to hear and determine the matter. as such the Tribunal must down its tools and require the Applicant seek redress from the right forum.

H.  Orders

a)  The upshot is that the Tenant’s reference and notice of motion application dated 13th September 2021 are hereby dismissed.

b)   Each party shall bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 31stday ofJanuary, 2022 in the presence of Ndungufor theLandlordand in the absence of theTenants.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL