Johnstone Kibunguchi Walubengo v Rebecca Osimbo Seruya [2021] KEBPRT 329 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 09 of 2021

JOHNSTONE KIBUNGUCHI WALUBENGO……………………………………LANDLORD

VERSUS

REBECCA OSIMBO SERUYA………………………………………..………..……….TENANT

RULING

1. The Landlord filed the present reference. Contemporaneously the Landlord filed the application brought by way of certificate dated 18th February seeking for a plethora of orders including an order to levy distress and to hold part of the tenant’s property at the premises as lien in accordance to the terms of the lease agreement.

2. The tenant upon being served duly entered appearance and appointed an advocate to act on their behalf. The tenant elected to oppose the application by filing the Replying Affidavit dated 3rd March, 2021.

3. It is important to set out the background of the dispute between the parties herein. It is not contested that the parties entered into a lease which was reduced into writing on 25th August, 2017. The Landlord Tenant relationship subsisted till sometimes in February 2021 when the tenant vacated the demised premises owing to contested rent arrears.

4. It was a term of the lease agreement that in the event of default in rent payment, the Landlord could take the three pumps as collateral. It was further an explicit term that the Landlord could on top of repossessing the pumps, evict the tenant where the rent default persisted for more than 2 quarters.

5. The dispute between the parties has been quite emotive and one which has gone to the extent of a report being made to police for investigations. Before the ink could dry after this Tribunal issued directions on the 5th March, 2021, the tenant filed an application by way of certificate dated 24th March, 2021 citing the Landlord for being in contempt of the orders issued.

6. The Landlord responded to the application by filing a Notice of Preliminary Objection on 21st May, 2021 stating that this Tribunal lacks the jurisdiction to determine the application and the Reference herein.

7. The preliminary objection being one that goes into the core of this matter as it raises issues of jurisdiction thus takes precedence as it is capable of dispensing off with the application and reference in its entirety.

8. The jurisdiction of this Tribunal is espoused under the provisions of Section 12 of Cap 301. The limits of the jurisdiction are also set out explicitly therein. It is prudent to note that this Tribunal only has jurisdiction to deal with disputes emanating from controlled tenancies.

9. It only follows that the Tribunal can only act within the limits of its jurisdiction as was aptly discussed in the case of REPUBLIC V BUSINESS PREMISES RENT TRIBUNAL & ANOTHER EX- PARTE ALBERT KIGERA KARUME [2015] eKLRcited with approval the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195 where the Court dealt with the provisions of section 12 of Cap 301 as follows:

“The tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied…. …. The powers of the tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the tribunal, but merely states what the tribunal may do within its area of jurisdiction…… It would be erroneous to think that section 12(4) confers on the tribunal any extra jurisdiction to that given by and under the Act elsewhere. For example it is not within the tribunal’s jurisdiction to deal with criminal acts committed in relation to any tenancy nor is it within its jurisdiction to entertain an action for damages for trespass. These are matters for the courts and the tribunal cannot by way of a complaint to it by the landlord or tenant purport to deal with such matters. Section 12(4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy…. The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”.

10. Controlled tenancy has been defined at section 2 of the act as follows:

“controlled tenancy” means 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; or

(iii) relates to premises of a class specified under subsection (2) of this section

11. Having set out the background to the dispute in this matter and the applicable law, the preliminary issue for determination is whether there existed a landlord tenancy relationship at the time of filing the present application and reference. It is not disputed that the parties entered into a lease for a period of three years. This was therefore a controlled tenancy in every sense,

12. The parties are equally in agreement that the tenant vacated the demised premises even though there is a dispute on the actual time that she vacated. The parties herein having agreed that the tenant vacated the demised premises have implied to the landlord tenant relationship having been extinguished.

13. As earlier discussed, this Tribunal draws its jurisdiction from the provisions of Section 12 of Cap 301. Section 12(e) on the orders that the Tribunal can make against a tenant provides as thus:

to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy;

14. The tenant having vacated the demised premises before the filing of the present reference renders this proceedings moot; an academic exercise at its best. The Tribunal lacks jurisdiction and proceeding any further will be a nullity. Any debt that had accrued or dispute stemming out of the same has mutated into a commercial dispute hence can be determined through the appropriate fora.

15. I am guided and fortified by the position in  Samuel  Kamau Macharia & Another –vs- Kenya Commercial Bank Ltd & 2 Others (2012) eKLRwhere the court held that : -

“A court’s jurisdiction flows from either the constitution or legislation or both.  Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law.  It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by the law.  We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”

16. The Landlord’s preliminary objection is merited as this Tribunal lacks the jurisdiction to hear the present reference and the subsequent applications. It has to therefore down its tools.

Disposition:

1. The Landlord’s preliminary objection dated 18. 5.2021 is allowed and the reference is dismissed in its entirety with no orders as to costs.

It is so ordered.

Ruling read, signed and delivered this28th July, 2021.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the absence of the parties.