Haven’s Lounge v Waymore Entertainment Limited [2021] KEBPRT 473 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 972 OF 2020 (NAIROBI)

HAVEN’S LOUNGE..................................................................TENANT/APPLICANT

VERSUS

WAYMORE ENTERTAINMENT LIMITED..................LANDLORD/RESPONDENT

RULING

The Tenant has by his notice of motion dated 9th December 2020 sought a record eighteen prayers and has listed in support thereof twenty grounds and an affidavit sworn by Mr Moses Masinde, the Executive Director of the Tenant/Applicant.

The application is opposed by the Landlord/Respondent vide the affidavit of Mr Glen Mbarani Khaminya sworn on 22nd December 2020.  The parties have filed submissions for and against the reference and the application by the Tenant.  From the record, I am not able to find any order specific on what, between the application and the reference, the submissions were to be filed.

On 16th December 2020, the parties herein recorded a consent in the following terms;

1. The Landlord be granted seven days to file replying affidavit and rent schedule.

2. The lease between the Tenant and Landlord to stand terminated on 18th December 2020 as per the notice issued by the Tenant dated 18th November 2020.

3. A joint inspection and inventory to (sic) by the Landlord and Tenant between today and close of business 18th December 2020 and the inventory to be filed with the Tribunal.

4. The Landlord to assume responsibility and liability as well as safety of the Tenant’s assets at the premises pending further orders of the Tribunal.

5. The Tenant be at liberty to remove perishables on the premises to include beer, open bottles of wines and liquor and any food items.

6.   A mention date be given by the Tribunal.

I will revert to this consent later in this ruling.

Both parties have, in their submissions listed what they consider issues for determination by the Tribunal.  The Landlord’s counsel has raised the issue of whether or not this Tribunal has jurisdiction to entertain the Tenant’s application and reference.  I propose to deal with this issue first while agreeing with the observation of Ngarangi JA in the case of, the owners of Motor Vessel “Lilian s” Vs Caltex Oil Kenya Ltd [1989] kLRIwhere the learned Judge stated;

“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.”

Under clause 8. 1.3 of the tenancy agreement between the parties herein is provided as follows;

“The Tenant may subject to the issuance of one (1) month’s prior written notice to the Landlord terminate this agreement without being entitled to pay any penalty or compensation to the Landlord as a consequence of such termination.  Provided that in the event of the Tenant wishing to dispense the one (1) months’ notice aforesaid, the Tenant shall accept one (1) month’s rent in lieu thereof.”

Pursuant to the above clause, the Tenant/Applicant issued a tenancy termination notice to the Landlord, the relevant part (paragraph 4) which provides as follows;

“It is therefore under the said background that we are authorized by the company to tender to you one (1) months’ notice of the company’s intention to terminate the tenancy agreement dated 11th April, 2019.  Pursuant to clause 8. 1.3 of the said agreement commencing on the date of service of this notice.”

The termination notice is the one dated 18th November 2020.  It is instructive that the receiving party, in this case, the Landlord did not oppose the Tenant’s notice.  The effect of this non action by the Landlord is that the notice became effective on the date suggested by the Tenant and also provided for under the tenancy agreement between the parties.

On 16th December 2020, the parties confirmed this state of affairs when they recorded a consent, the relevant consent order which provided;

(2) “The lease between the Tenant and the Landlord to stand terminated on 18th December 2020 as per the notice issued by the Tenant on 18th November 2020. ”

The tenor of consent orders number 3, 4 and 5 points to a situation where the Tenant would no longer be in the demised premises.

I therefore do find that there currently exists no Tenant/Landlord relationship between the parties the same having been extinguished on 18th December 2020 as per the Tenant’s notice of termination dated 18th November 2020 and the consent orders issued on 16th November 2020.

I do further find that the Tenant’s notice to terminate tenancy was accepted by the Landlord who did not move the Tribunal in opposition to the said notice.  The notice effectively terminated the tenancy.

In conclusion, I therefore do find that this Tribunal has no jurisdiction to entertain the dispute herein and the parties ought to ventilate their grievances in an appropriate forum with the requisite jurisdiction.

In “downing my tools” I am guided by the pronouncement of justice Odunga in Republic Vs Business Premises Rent Tribunal & Another & ex parte Davies Motor Corporation Limited [2013] eKLR at paragraph 38 where the learned judge stated;

“…If at the time of the delivery of its decision there was no longer a Landlord/Tenant relationship between the Applicant and the interested party, then it would follow that the Respondent ceased to have any jurisdiction in the matter and as soon as it became known that it had no jurisdiction, it ought to have downed its tools.”

Any further dwelving into the issues raised by the parties herein would be an exercise in vain.  The Tenant’s reference dated 9th December 2020 and its application of even date are hereby dismissed with costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

DATED AND DELIVERED VIRTUALLY THIS 23RD DAY OF APRIL 2021 IN THE PRESENCE OF MARWA FOR THE LANDLORD/RESPONDENT, MISS KIMANGA HOLDING BRIEF FOR WAGENI FOR TENANT/APPLICANT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL