Hared v Imadin & 2 others [2025] KEBPRT 258 (KLR)

Hared v Imadin & 2 others (Tribunal Case E1309 of 2024) [2025] KEBPRT 258 (KLR) (15 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 258 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1309 of 2024

Gakuhi Chege, Chair & J Osodo, Member

April 15, 2025

Between

Mohamed Abdulahi Hared

Applicant

and

Mohamed Hanif Imadin

1st Respondent

Abdiaziz Mohamed Ali

2nd Respondent

Abubakar Sheikh

3rd Respondent

Ruling

1. The tenant moved this Tribunal through a motion dated 26th November 2024. At prayer 10 thereof, he is seeking for an order for reinstatement back into the business premises known as Shop No. 10, erected on L.R NO. 36/II/139 (Eastleigh Section II, Nairobi.

2. At paragraphs 10, 11 & 12 of his supporting affidavit of even date, the tenant deposes as follows: -“10. That however, to my utter shock and dismay, the landlord herein reported me to the DCI, Ruaraka and used the police to intimidate and arrest me, as a result of which I was detained and thereafter, the landlord went ahead to allocate the said shop to the 2nd respondent herein with my merchandize still inside.

11. That prior to that, the landlord had denied me entry into the shop and locked the same with my property inside and had effectively re-allocated the same to the 2nd respondent herein, to wit, my plaque and business name have been effectively removed from the suit property.

12. That I am advised by my advocates on record which advice I verily believe to be true that no eviction notice has ever been issued to me prior to the said unlawful and illegal eviction by the landlord, thus being in contravention of the provisions of Section 4 of the Landlords and tenants Act, and has further unlawfully and illegally retained my property in league with the second Respondent herein.” (underlining ours).

3. In a letter dated 7th November 2024 marked ABB1annexed to the replying affidavit of the 3rd respondent, the tenant’s advocates M/S Ondeng Ray & CO. at page 2 paragraph 4 states as follows: -“Our client is agreeable to and undertakes to Immediately pay and settle the outstanding rent arrears of Kshs. 210,000/= owed to your client and thereafter settle the goodwill balance of Kshs. 300,000/00 within three months from the date hereof and therefor requests for your client’s consideration and indulgence in handing over possession and unfettered access of the shop back to our client in fulfilment of the terms of their lease agreement.” (underlining ours)

4. Although the tenant claimed that the 2nd respondent was his employee, the said respondent swore a replying affidavit on 16th December 2024 wherein he denies the allegation. He deposes that he occupied the suit premises after the tenant/applicant herein vacated therefrom and offered the shop to him for business. He denied that the applicant’s properties were still in the suit premises.

5. Having perused the pleadings in this matter and based on the admission by the applicant that he is no longer in the suit premises, this Tribunal has no jurisdiction to entertain the instant proceedings on the basis of the decision in Pritam Vs Ratilal & Another (1972) E.A 560 at page 562 wherein Madan J (as he then was) stated as follows: -“As stated in the Act itself, it is an Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. Therefore, the existence of the relationship of landlord and tenant is a prerequisite to the application of the provisions of the Act. Where such a relationship does not exist or it has come 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 as defined in Section 2 to which the provisions of the Act can be made to apply. Outside it, the tribunal has no jurisdiction”.

6. In the case of OWners And Master Of The Motor Vessel “joey” And The Owners And Masters Of The Motor Tugs “barbara” & “steve B” (2007) eKLR, the Court of appeal had the following to state on the issue of jurisdiction at page 7/15:“That is the underlying principle contained in the two previous decisions of this Court in the cases of The Owners Of The Motor Vessel “lilian S” V. Caltex Oil (kenya) Ltd [1989] Klr 1, And Roy Shipping Sa & All Other Persons Interested In The Ship “mama Otan” Vs. Dodoma Fishing Company LTD, Civil Appeal No. 238 of 1997 (unreported). In the LILIAN S, the Court, consisting of the late Mr. Justice Nyarangi, the late Mr. Justice Masime, and Mr. Justice Kwach, relying on previous decisions of the Courts of the United Kingdom, decisions such as The River Rima [1987] 3 ALL E.R 1, The I Congreso del Partido [1983] 1 AC 244 and such like cases, held that the question of jurisdiction, raised in the circumstances such as those existing in the present appeal, is a thresh-hold issue and must be determined by a judge at the thresh-hold stage, using such evidence as may be placed before him by the parties. Nyarangi, J.A graphically put it thus: -“...... I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 down (sic) tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. ...........”The learned Judge of Appeal then referred to certain passages in the text “Words & Phrases Legally Defined.” – Vol. 3: I – N at pg. 113 and then continued:“It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined. I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.”

7. Based on the materials on record, we find and hold that the Applicant was not in possession of the suit premises at the time of institution of the instant proceedings and as such there was no landlord/tenant relationship between him and the landlord. There is therefore no basis for this Tribunal to exercise jurisdiction in the matter.

8. In the premises, the Applicant’s reference and application dated November 26, 2024 is dismissed with costs to the Respondents. The Applicant is at liberty to seek redress of his grievances in the appropriate forum.

9. The respondent’s costs are assessed at Kshs 25,000/=.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS15thDAY OF APRIL 2025. HON. GAKUHI CHEGE - (PANEL CHAIRPERSON)HON. JOYCE AKINYI OSODO - (MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of: -Omondi for the tenantNo appearance for the landlord