Kamau v Mathaka & 2 others [2024] KEBPRT 198 (KLR)

Kamau v Mathaka & 2 others (Tribunal Case E875 of 2023) [2024] KEBPRT 198 (KLR) (20 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 198 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E875 of 2023

P Kitur, Member

February 20, 2024

Between

Atanas Gichanga Kamau

Tenant

and

Christopher Waweru Mathaka

1st Landlord

Moses Kamau

2nd Landlord

Agnes Ndete Mathaka

3rd Landlord

Ruling

A. Parties and Representatives 1. The Applicant Atanas Gichanga Kamau is the Tenant and has rented out the suit premises from the LandLord

2. The Tenant is represented by Kabuthia Kamau & Associates Advocates.

3. The 1st, 2nd and 3rd Respondents, Christopher Waweru Matahaka, Moses Kamau and Agnes Ndete Mathaka are the proprietors of the property known as Dagoretti Riruta/6518 (hereinafter known as the ‘Landlord’)

4. The firm of M/S Bryan Khaemba, Kamau Kamau & Co. Advocates represents the Landlord in this matter.

The Dispute Background 5. The Tenant averred that the Landlord issued a defective notice to the property agents managing land parcel no. L.R Dagoretti Riruta/6518 (Gordas Agencies Limited) vide letter dated 17th August 2023 to cease dealing with the Tenant as they had terminated his tenancy and further forwarded the letter to the Tenant seeking to evict him.

6. Aggrieved by this actions, he filed a Reference accompanied by a Notice of Motion Application under certificate both dated 6th September 2023 seeking the following orders among others:i.That the Respondents b and are hereby restrained from evicting or removing any items from the Tenants business premises Land Parcel No. Dagoretti Riruta/6518. ii.That the Respondents be prohibited forthwith from unlawfully intercepting harassing, intimidating, closing, attaching among others and in any manner whatsoever, tampering with the lawful enjoyment of the suit premises Land Parcel L.R.NO. Dagorretti Riruta/6518 pending the hearing and determination of this Application.

7. In Response, the Landlord filed A notice of Motion Application dated 4th October 2023 alleging that the Relationship between the Tenant and themselves was not a controlled tenancy under the ambit of the provisions of CAP 301.

8. The Landlord equally filed a Notice of Preliminary Objection dated 4th October 2023 challenging the jurisdiction of this honorable tribunal on the grounds that the tenancy between the parties is not a controlled tenancy.

B. List of Issues for Determination 9. The main issue for determination is as follows;a.Whether the Preliminary Objection herein is merited.

C. Analysis And Findings 10. The issue that arises for determination herein is whether the Preliminary Objection raised is sustainable

11. The principles established by the time-honored, Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors (1969) EA 696, cited Hassan Ali Joho Case (supra) are settled that;“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

12. An objection to the jurisdiction of the court has been cited as one of the preliminary objections that consists a point of law. Indeed the locus classicus case on the question of jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S”(supra)where the Court held: “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.”

13. The question of the jurisdiction of this honourable tribunal was brought forth by the Landlords Preliminary Objection and the Notice of Motion Application dated 4th October 2023 for the reason that the Lease agreement between them did not surmount to a controlled tenancy as per the provisions of Cap 301.

14. I wish to reproduce the provisions of Section 2 of Cap 301 which defines a controlled tenancy 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:

15. In support of their case, the Landlord produced the Lease agreement dated 29th June 2015 between themselves and the Tenant.

16. Having considered that the lease period therein is in writing and a period of years exceeding 5 years, and that the subject matter of the lease was/is an undeveloped parcel of land, I am inclined to agree with the Respondents that this honourable tribunal lacks jurisdiction to hear and determine the present suit.

17. I wish to reiterate the findings in Republic vs Business Premises Rent Tribunal & Another Ex- Parte Albert Kigera Karume [2015] eKLR which cited 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 and stated 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…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”.

19. With the above analysis, it is my finding that the relationship between the Tenant and Landlord does not amount to a controlled tenancy as envisioned in Cap 301 and, I hereby make the following orders:a.The Landlord’s Notice of Preliminary Objection dated 4th October 2023 is hereby allowed.b.The Tribunal lacks jurisdiction to hear and determine this matterc.The Tenant’s Complaint and Application are hereby struck out.d.Costs are awarded to the Landlords.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR ON 20TH FEBRUARY 2024 IN THE PRESENCE OF KAMAU FOR THE LANDLORDS AND IN THE ABSENCE OF THE TENANT.HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNAL