Kibargoi House Ltd v Benedict Simeon Ondieki Nyatangi t/a Benom Hardware Ltd [2021] KEBPRT 159 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 60 OF 2020

KIBARGOI HOUSE LTD..................................................LANDLORD/APPLICANT

VERSUS

BENEDICT SIMEON ONDIEKI NYATANGI T/A

BENOM HARDWARE LTD.................................................TENANT/RESPONDENT

RULING

Parties and Their Representative

1.  The Landlord/Applicant is the proprietor of the rental premises erected on Eldoret Municipality/4/335 Known as Kinargoi House (hereinafter referred to as the “Landlord”)

2.  Learned Counsel Ham & Hamsley Advocates represent the Landlord. (info@hhadvocates.co.ke)

3.  The Tenant? Respondent, rented shop space in the suit premises (hereinafter referred to as the “Tenant”)

4.  Learned Counsel Anassi Momanyi & Co. Advocates represent the Tenant. (anassimomanyi@gmail.com)

The Dispute Background

5.  On 24th June 2020, the Landlord filed a reference to the Tribunal on the grounds that the Tenant had failed to;

a.  pay rent for over 6 months without any reason and /or basis;

b.  adhere to the terms and conditions of the tenancy agreement;

c.  grant the Landlord an opportunity to inspect the premises after due notice; and

d.  use the premises for the intended purpose as per the tenancy agreement

6.  On 22nd July 2021 the Tribunal gave orders that the Application by the Landlord dated 30th July 2020 be served to the Tenant for inter partes hearing of 17th August 2021

7.  On 16th August 2021 the Tenant filed a Replying Affidavit challenging the Landlord’s Application.

8.  On 10th September 2021 the Landlord Filed a Supplementary Affidavit. The Application coming up for ruling is the Landlord’s Application dated 30th July 2021.

Claim and Defence

9.  The Landlord and the Tenant entered into a Tenancy Agreement sometime in 2018.

10. The Landlord’s Claim is that the Tenant has been in occupation of the suit premises without paying any rent.

11. It is the Tenant’s claim that he has no rent arrears and all monies owed to the Landlord have been paid in accordance with the Memorandum of Understanding entered between the Landlord and the Tenant on 26th August 2020.

12. It is the Landlord’s further claim that Clause 2 of the aforementioned Memorandum of Understanding was not fully adhered to by the Tenant and that there is a pending Court case in E075 of 2021 between the parties over rental demand.

List of Issues For Determination

13. The Parties raised certain issues for determination and the Tribunal shall proceed to distill the issues discussed by the Parties and their Counsels who submitted in writing as below:

a. Whether there is a Tenancy relationship between the Parties?

b. Whether the Landlord is entitled to the orders sought?

Analysis and Findings

Whether there is a Tenancy Relationship between the Parties?

14. The Tenant in his Replying Affidavit dated 16th August 2021 paragraph 17, states that there is no tenant landlord relationship between Kibargoi House Limited and Benom Hardware Limited what exists is a tenancy between himself and Sammy Kiptketer Cheruiyot. The Landlord further states in its supporting Affidavit dated 30th July 2020 that paragraph 5, that there is no more tenancy relationship between the Parties.

15.  Section 12 (a), (e) and (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act Cap 301,provides that A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power-

a.  to determine whether or not any tenancy is controlled tenancy;

b.  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 menseprofit, 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; and

c.  in addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such orders thereon as it deems fit.

16. From the Landlord’s Affidavit dated 30th July 2020, paragraph 1, he mentions that he is the Director of Kibargoi House Linited. Further in paragraph 3 he goes further to mention that there has been a tenancy relationship with the Tenant for a period of two years (since 2018). The Tenant also avers the same in his Replying Affidavit where he states that there exists a tenancy between himself and Sammy Kipketer who is the director to Kibargoi House Limited.

17.  Section 2 of the Act defines a landlord as, “in relation to a tenancy, means the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy”. It is clear in our case the Landlord is Kibarogi House Limited and Mr. Sammy Kipketer was receiving rent on behalf of the company in his capacity as the Director of the Company.

18.  Furthermore, Section 159 (2) (d) provides that, “In excercising judicial authority, the courts and tribunals shall be guided by the following principles- justice shall be administered without undue regard to procedural technicalities.

19. Having established that there’s a tenancy relationship between the Parties, we now have to determine whether the Tenancy was a controlled tenancy. Section 2 of the Act defines a controlled tenancy to mean; 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

20.  The Parties have not produced a written tenancy agreement executed by both parties, this points to a controlled tenancy being created between the Parties by dint of Section 2(a) of the Act as mentioned above. I therefore find that this Tribunal has the competent jurisdiction to hear this matter.

21.  The other issue is whether this suit after being dismissed for want of prosecution can be reinstated? The landlord’s application dated 12th July 2021 prays for suit 60 of 2020 to be reinstated. Counsel an officer of this court has sworn an affidavit on oath in support of the application and in it states that he has been unwell for several days almost 75 days and was unable to prosecute the same when it came up on behalf of his client. It is trite law that mistake of counsel should not be vetted on their client. Even though no evidence of sickness has been provided I will presume that counsel is a man of his word and his statement has been made under oath I am inclined to give the litigant his client his day in court.

22. I therefore reinstate ELDORET 60 of 2020 to be set down for hearing within 60 days.

ORDER

For the reason given above I order as follows that;

a)  The matter 60 of 2020 is hereby reinstated. Parties to take a hearing date in the registry within the next 60 days

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 2ND DAY OF NOVEMBER, 2021 IN THE ABSENCE OF THE PARTIES.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL