Jonathan Mutuku Maingi v Davetronics Company Limited [2020] KEBPRT 58 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 190 OF 2020 (NAIROBI)

JONATHAN MUTUKU MAINGI...................................TENANT/APPLICANT

VERSUS

DAVETRONICS COMPANY LIMITED..............LANDLORD/RESPONDENT

RULING

The Tenant/Applicant filed a reference under section 12(4) of Cap 301 and also a notice of motion dated 14th February 2020 under a certificate of urgency.  The Tribunal upon hearing the advocates for the Tenant/Applicant and upon perusal of all the pleadings issued interim orders on 17th February 2020.

The Tribunal has on record the following pleadings;

1. Tenant’s reference and the notice of motion dated 14th February 2020.

2. The Landlord’s notice of motion dated 7th April 2020.

3. Tenant’s written submissions dated 11th May 2020.

4. Landlord’s written submissions dated 12th May 2020.

5. The Applicant’s bundle of documents dated 12th May 2020.

6. The Tenant’s replying affidavit to the Landlord’s application dated 7th April 2020.

The Tribunal has perused all the pleadings and the written submissions of the advocates of the parties in details and makes the following findings.

Admitted facts:

1. That the Landlord/Respondent is the owner of the suit premises LR 3734/878 (original 3734/4/2Nairobi).

2. That the Landlord entered into a lease agreement on 25th September 2018 with Harry Olusemi Gabriel Arogundade for a period of five years and 3 months with effect from 1st October 2015 and will expire on 31st September 2020.

The core issue for determination in this reference is whether there is a Landlord and Tenant relationship between the Applicant and the Landlord.

The Tenant/Applicant has deponed that he bought the business and the tenancy interests of the Landlord’s Tenant in respect of the suit premises with full knowledge and/or consent of the Landlord.  The Landlord maintained that the Tenant is a stranger.  The Tenant is relying in an oral agreement.  The Tenant/Applicant has admitted that he has no written tenancy agreement with the Landlord.  The Tenant is relying in an oral agreement and not on the Landlord’s written lease agreement with the Tenant dated 25th September 2015.

The Tribunal notes the following;

1. The Tenant the Landlord is alleging that he is its lawful Tenant in the suit premises is not a party to the reference before the Tribunal.

2. The Tenant/Applicant has not annexed sale agreement in respect of the alleged sale of the business and tenancy interests in respect of the suit premises.

3. The proclamation dated 13th January 2020 which prompted the Tenant/Applicant to file the reference in the Tribunal was not addressed to him but to the Tenant who has signed the lease agreement with the Landlord dated 25th September 2015.

4. There is no written consent from the Landlord’s authority the Tenant who signed the lease dated 25th September 2015 to transfer the business and the tenancy to the Tenant/Applicant.

5. The business’s license in respect of the suit premises is in the name of Mummy dada Group Ltd which is an entity which is not signatory to lease dated 25th September 2015.

6. The lease agreement dated 25th September 2015did not create a controlled tenancy and the Tribunal has no jurisdiction to determine any dispute in respect of the same.

In the light of the above findings, the Tribunal makes the following orders:

1. The tribunal is not able to conclusively determine whether there is a Landlord and Tenant relationship between the Applicant and the Landlord without taking oral evidence from the parties.

2. There is evidence on record that the application is in exclusive possession of the suit premises and the status quo should be maintained pending the hearing and determination of the reference.

3. A Landlord has a statutory right to levy distress under section 3 of the Distress for Rent Act Cap 293 and the Tenant/Applicant is hereby ordered to pay all the arrears of rent (if any), on or before 30th June 2020and the Landlord shall accept the same on without prejudice basis pending the hearing and determination of the reference in default the Landlord shall levy distress.

4. The Landlord’s application dated 7th April 2020 is hereby dismissed with no order as to costs.

5. The Tenant’s application dated 14th February 2020 and the reference dated 14th February 2020 shall be heard and be determined together with way of oral evidence on a date to be mutually agreed at the registry.

6. The interim orders issued on 17th February 2020 are hereby extended and shall remain in force subject to compliance with order 3 above.

Ruling dated and delivered this 4th day of June 2020 in the presence of Kimani for the Landlord.  Mingo for the Tenant.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL