Irene Mugo t/a Horizon Academy v Zipporah N Nkonga [2022] KEBPRT 53 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 86 OF 2021 (NAKURU)

IRENE MUGO T/A HORIZON ACADEMY...............TENANT/APPLICANT

VERSUS

ZIPPORAH N NKONGA.......................................LANDLADY/RESPONDENT

RULING

A. Parties and Representatives

1. The applicant Irene Mugo is the tenant and rented space for the business in the suit property Block 23/668 Naka Estate (hereinafter known as the ‘Tenant’)

2. The firm of Kiarie Kabita Kihunyu & Associates  represent the Applicant/Tenant in this matter.

3. The Respondent Zipporah Nkonga is the Landlord and rented out space to the tenant for the business in the suit property (hereinafter known as the ‘landlord’)

4. The firm of Gatitu Mwangi & Co. Advocates represent the Respondent/tenant in this matter. [Particulars Withheld] dvocates@gmail.com

B. The Dispute Background

5. The Landlord and the Tenant entered into a tenancy agreement dated 30th January 2016 where the tenant was supposed to pay a monthly rent of Kshs. 15,000/-.

6. The Landlord issued the Tenant with a notice to terminate tenancy on the grounds that they did not want to renew the tenancy agreement upon its expiration.

7. The Tenant/applicant has since moved this Tribunal by way of reference and a notice of motion application dated 2nd August 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The tenant was seeking that pending the hearing and determination of the suit the Landlord be restrained from issuing an illegal eviction notice, harassing the tenant as well as increasing the rent.

8. On 3rd August 2021 the Tribunal gave injunctory orders against the Landlord.

9. The Tenant filed a reference and notice of motion Application dated 2nd August 2021 and acquired injunctory orders.

10. The tenant has filed a supplementary affidavit dated 14th September 2021.

11. The Landlord has filed a replying affidavit dated 23rd August 2021 and a further replying affidavit dated 13th October 2021.

12. Parties have filed submissions and the matter was fixed for ruling on 2nd March 2022.

C. List of Issues for Determination

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

Does the tribunal have jurisdiction to entertain this matter.

D. Analysis and Findings

14. 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”

15. 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.

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

17. The Tribunal has analyzed the lease agreement provided by the Landlord. The lease agreement clearly stipulates that the lease agreement is for a period of fifteen years with effect from 1st February 2016.

18. The only clause that could have given the tribunal jurisdiction which is the termination clause reads as follows - the lease hereby constituted may be terminated by either parties giving at least 6 months written notice to the other however the notice is not applicable for the first five years of the lease period.

19. From the above the Tribunal finds that the above lease does not fall within the definition of a controlled tenancy in section 2 of CAP 301. As a result the Tribunal does not have the requisite jurisdiction to hear and determine the matters raised in the Tenant’s reference and application.

20. The Tribunal must down its tools and require that the parties seek redress in the right forum.

E. Orders

a. The upshot is that the Tenant’s reference and application dated 23rd September 2021 are hereby dismissed with costs for want of jurisdiction.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 2ndday ofMarch, 2022 in the presence of Gatitufor theLandlordand Kabitafor theTenant.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL