Kamau v Waikao & another [2025] KEBPRT 193 (KLR)

Kamau v Waikao & another (Tribunal Case E1258 of 2024) [2025] KEBPRT 193 (KLR) (Civ) (27 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 193 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E1258 of 2024

P Kitur, Member

February 27, 2025

Between

Samuel Kariuki Kamau

Applicant

and

Doris Waigwe Waikao

1st Respondent

Trevo Auctioneers

2nd Respondent

Ruling

A. Parties 1. The Applicant is a business owner operating a catering establishment offering food and catering services within the suit premises as a tenant the landlord.

2. The firm of Laichena Mugambi & Ayieko Advocates LLP represents the Applicant.

3. The Landlord is the Director of the company that is the registered holder of the lease to the parcel of land located at Plot Number 5096 (original 4973/8) Section I Mainland North (‘the suit premises”).

4. The firm of Messrs. Nyandwat Odundo & Company Advocates represents the Respondents.

5. The 2nd Respondent is an auctioneer firm.

B. The Dispute Background. 6. The parties established a tenancy relationship through a lease agreement, duly signed and executed by both parties.

7. The Applicant operates two distinct businesses on the suit premises, each occupying its own separate structure.

8. To formalize their respective tenancies, the parties entered into two separate lease agreements, each corresponding to one of the Applicant's businesses.

9. The tenancy continued without interruption until on or about 7th November 2024, when the 2nd Respondent issued a proclamation of attachment/distrain of moveable property, threatening to seize the Applicant's property for sale in order to recover rent arrears allegedly owed to the Landlord.

10. On 14th November 2024, the Applicant filed a Complaint before this Tribunal, raising a complaint against the Landlord for unlawfully terminating the tenancy, making an illegal proclamation of the Applicant's business goods, and imposing illegal levies on rent.

11. Subsequently, the Applicant filed an application seeking an injunction against the Respondents. In the application, the Applicant sought an order from the court restraining the Respondents from evicting the Applicant, interfering with the tenancy, or attaching the Applicant's property.

12. The Tribunal issued interim orders on 15th November 2024.

13. In response to the Applicant's application, the Respondent filed a Replying Affidavit, sworn on 26th November 2024, addressing the application dated 14th November 2024.

14. On 27th November 2024, during the court proceedings, Counsel for the Respondents notified the court of their intention to file a preliminary objection against the suit by close of business the following day. The court directed both parties to file their written submissions on the preliminary objection.

15. The Respondents filed a preliminary objection on 28th November 2024, seeking to strike out the suit on the grounds that the Tribunal lacks jurisdiction to hear this instant matter. The Respondents contended that the tenancy in dispute does not constitute a controlled tenancy as defined under section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, and therefore, the parties are not protected tenants under the Act. Additionally, the Respondents argued that the property in dispute is situated in Mombasa, not Nairobi.

16. The Respondents in their submissions argue that the tenancy in question does not meet the statutory definition of a controlled tenancy as defined in section 2(1) of the Act. The Respondents contend that the property in dispute falls outside the jurisdiction of this Tribunal, as it is located in Mombasa, and the Applicant is not a protected tenant under the Act. It was on these grounds that the Respondents argued that the suit be struck out.

17. In opposition to the preliminary objection, the Applicant in their submissions asserts that the tenancy falls within the ambit of controlled tenancies as provided for in the Act. The Applicant contends that they are a protected tenant under the Act and that the Tribunal, while located in Nairobi, has unlimited geographical jurisdiction to hear matters involving disputes arising from tenancies within the Republic of Kenya. The Applicant further submits that this Tribunal can exercise its jurisdiction over the matter, regardless of the physical location of the property.

C. List Of Issues for Determination. 18. In light of the foregoing, this tribunal is of the consideration that the main issue to be determined in this ruling is:a.Whether the Notice of Preliminary Objection dated 28th November 2024 is merited.

D. Analysis And Findings. 19. The Respondent contends that the tenancy between the parties does not fall within the jurisdiction of this Tribunal. Their argument is based on the premise that the lease agreement lacks a termination clause otherwise than for breach of contract and that the tenancy was stipulated to endure for a period of five years and three months.

20. Conversely, the Tenant asserts that although the said lease expired, the Tenant continued to occupy the premises and remitted rent to the landlord. The Tenant argues that this resulted in the tenancy transitioning into an unwritten tenancy, thereby granting this Tribunal jurisdiction. The lease agreement appended by the Respondent in the Replying Affidavit dated 26th November 2024, labeled as "DWW-1(b)," indeed indicates an expiry date of 31st July 2024. Notably, the suit was instituted on 15th November 2024, several months post the lease agreement's expiration.

21. Therefore, considering the evidence and arguments presented, this Tribunal must ascertain whether the continued occupancy and rent payment subsequent to the lease's expiration transformed the tenancy into an unwritten tenancy within its jurisdictional purview.

22. The lease agreement having expired, the continued stay of the Tenant upon the demised premises past the expiry of the written lease could only have been on the basis of an unwritten lease agreement. Under section 2(1) a 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 orii.Contains 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.

23. To be sure, the written lease (now expired) placed the parties herein outside the jurisdiction of the Tribunal. The lease having expired and the parties having continued to honour their respective obligations as Landlord and Tenant respectively, they could only have been acting on the basis of an unwritten lease. The Applicant had become a periodic Tenant. I agree with the holding in Ukwala Supermarket (Eldoret) Ltd Vs Amritral Sujpar Shah Wholesalers Ltd (2017) eKLR where the court held;“In conclusion, I do find that since the agreement between the Plaintiff and the Defendant was not reduced into writing, and the lease between the Plaintiff and the previous owners was not registered, the relationship between the Plaintiff and the Defendant was reduced to a periodic tenancy to be terminated in the manner to be stipulated by Cap 301. ”

24. In Embu HCCA No 7 of 2016, John Nthumbi Kamwithi Vs Asha Akumu Juma the Learned Judge held as follows;“Any tenancy which is not a lease and has no specified term of existence and whose rent is payable monthly is a month-to-month tenancy…”

25. Had the Landlord herein declined to accept rent after the expiry of the written lease and pursued her remedies under the said lease, the jurisdiction of the Tribunal would have been ousted. The case here is different. I do therefore hold that the tenancy between the parties herein is a controlled tenancy and the Tribunal has jurisdiction to hear and determine this dispute.

26. Regarding whether the Applicant qualifies as a protected tenant under the Act, the Tribunal recognizes that protection is granted to tenants of controlled premises, especially concerning rent and eviction matters. The Applicant's claims of unlawful tenancy termination, illegal attachment of goods, and unauthorized levies present issues that may warrant the Tribunal's intervention. A thorough examination of the tenancy specifics is required during the substantive hearing. Nevertheless, the Tribunal finds that these concerns are legitimately raised within the Act's framework and should not be dismissed at this preliminary stage.

27. The Tribunal holds jurisdiction over controlled tenancies, as stipulated by the Act. Although the property in question is located in Mombasa, the Tribunal acknowledges that the Act does not limit dispute filings based solely on the property's physical location. The Act establishes that the Tribunal has the authority to hear disputes related to business premises across the country, including but not limited to Nairobi. In this instance, although the suit is filed in Nairobi, the Applicant has appropriately sought relief in the proper forum, and the property's location in Mombasa does not deprive the Tribunal of jurisdiction to adjudicate the matter.

28. In light of the foregoing, I therefore proceed to order as follows;

E. Ordersa. The Respondents' preliminary objection dated 28th November 2024 is dismissed.b. Costs shall abide the outcome of the main suit.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. Kitur this 27th day of February 2025 in the presence of Odundo for the Landlord and Ayieko for the Tenant.