Kabacha v Gathara; Winsor Limited (Agent) [2022] KEBPRT 814 (KLR)

Kabacha v Gathara; Winsor Limited (Agent) (Tribunal Case E580 of 2022) [2022] KEBPRT 814 (KLR) (Civ) (9 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 814 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E580 of 2022

Andrew Muma, Vice Chair

November 9, 2022

Between

Kenneth Kamau Kabacha

Tenant

and

Ronald Gathara

Landlord

and

Winsor Limited

Agent

Ruling

1. The tenant/ applicant, Kenneth Kamau Kabacha, rented a bedsitter apartment Unit No G5 at Icon Place for one year situate in Kasarani (hereinafter referred to as the ‘tenant’).

2. The tenant/applicant appears in person in this reference.

3. The landlord/ respondent, Ronald Gathara, is the owner of bedsitter apartment Unit No G5 at Icon Place rented out to the tenant (herein after referred to as the ‘landlord’).

4. The agent/2nd respondent, Winsor Limited, is the appointed agent of the landlord with regards to the management of a bedsitter apartment Unit No G5 at Icon Place (herein after referred to as the ‘agent’).

5. The firm of Kabaiku & Co Advocates represent the landlord/1st respondent and the agent/2nd respondent. Kabaiku2000@yahoo.com

THE DISPUTE BACKGROUND 6. On April 1, 2019, a tenancy was entered into between Kenneth Kamau Kabacha as the tenant and Winsor Limited, acting on behalf of the landlord, who are the agents of the owners of the premises wherein the landlord had agreed to lease out the premises being a bedsitter apartment Unit No G5 at Icon Place (“herein after referred to as the suit premises”).

7. On July 6, 2022, the agent issued a demand notice for rental arrears of KShs 23,500. 00 stating that action to recover the amount due will be taken if the arrears are not settled by July 10, 2022.

8. On June 29, 2022, the tenant moved this tribunal by way of notice of motion and a certificate of urgency seeking interim orders restraining the respondents from unlawfully intercepting, harassing, intimidating, evicting, closing, threatening, tampering, interfering or disconnecting electricity, water or in any way interfering with the tenant’s quiet possession of the premises. Further, the tenant sought orders compelling the respondents to open up and allow the tenant free access to continue his business immediately failure to which the tenant to break and gain access with the assistance of the Officer Commanding Station-Kasarani Police Station. Lastly, the tenant prayed that the Officer Commanding Station- Kasarani Police Station to oversee the implementation of those orders.

9. This tribunal granted orders of temporary injunction on July 27, 2022 restraining the landlord from unlawfully intercepting, harassing, intimidating, evicting, closing, threatening, tampering, interfering or disconnecting electricity, water or in any way interfering with the tenant’s quiet possession of the premises. The tribunal also ordered the respondents to open up and allow the tenant free access to continue his business immediately failure to which the tenant to break and gain access with the assistance of the Officer Commanding Station-Kasarani Police Station and the tenant serves for interpartes hearing on July 27, 2022; the same is in force to date.

10. This tribunal also granted that the Officer Commanding Station-Kasarani Police Station to facilitate compliance of the orders.

THE TENANT’S CLAIM 11. The tenant filed a certificate of urgency, notice of motion and a supporting affidavit dated June 29, 2022.

THE LANDLORD’S CLAIM 12. The agent on the other hand filed a replying affidavit dated July 25, 2022 and submissions dated September 1, 2022. These pleadings form the basis of this claim.

13. I have had occasion to peruse the above-mentioned documents of both the agent and the tenant and also the agent’s written submissions and I will not rehearse the same again as they are brief and to the point.

14. Be that as it may, I have examined the documents placed before this tribunal and one issue comes up; that is the jurisdiction of this tribunal. Though the parties have not brought it up, this tribunal has power to determine whether it does have jurisdiction. As such, being a critical point, I shall proceed to examine it as follows.

15. This Tribunal has power to determine whether it has jurisdiction. Further, the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act under section 9 provides thatUpon a reference a tribunal may, after such inquiry as may be required by or under this Act, or as it deems necessary—(c)and in either case make such further or other order as it thinks appropriate.

16. I rely further on Total Kenya Limited v Drumcon Kenya Limited [2022] eKLR where the Court stated that;‘TheBPRT is a creature of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya. The preamble to the statue provides that 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” (emphasis mine).

17. The premises that are controlled tenancies are canvassed under section 2 (1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 provides that;“controlled tenancy” means a tenancy of a shop, hotel or catering establishment-a.Which has not been reduced into writing; orb.Which has been reduced into writing and which-;i.is for a period not exceeding five years; orii.contains a provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; oriii.relates to premises of a class specified under subsection (2) of this section.

18. A brief look at the subsequent provisions of the Act gives the definition of a shop, hotel and a catering establishment as below;“Shop” means premises occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or money’s worth.“Hotel” means any premises in which accommodation or accommodation and meals are supplied or are available for supply to five or more adult persons in exchange for money or other valuable consideration.“Catering Establishment” means any premises on which is carried out the business of supplying food or drink for consumption on such premises, by persons other than those who reside and are boarded on such premises.

19. It is evident from the above that a residential premise cannot in any way fall under the jurisdiction of the Tribunal.

20. The respondent vide their replying affidavit dated July 25, 2022 produced the tenancy agreement between the parties. An analysis of the tenancy agreement provides that the Tenancy shall be over a bedsitter apartment. Clause 2(m) of the tenancy agreement further provides that;“To use the premises as a private dwelling for own residential purpose only and occupation of one (1) family only and will not carry on any form of business or use them for any other purpose without the consent in writing of the landlord or his authorized agents”

21. The respondents also allege that the tenant has breached this provision by using the suit premises as a store. It is noteworthy that the tenant did not dispute that the premises are residential hence this tribunal is bound by the provisions of the tenancy agreement.

22. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Justice Nyarangi of the Court of Appeal held as follows“I think that 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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

23. As such, I am inclined to conclude that this tribunal has no jurisdiction in this matter and I am persuaded to down its tools. The foundation of its jurisdiction is the existence of a controlled tenancy which cannot be established herein.

ORDERSa.The upshot is that the tenant’s application and reference dated June 29, 2022 is dismissed on the following terms;b.The tribunal has no jurisdiction to hear and determine this application as the lease dated April 1, 2019 between parties is for a residential unit and clause 2(m) provides use for private family only not business.C.No orders as to Costs.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 9TH DAY OF NOVEMBER 2022In the absence of all partiesHON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL