Kiberu t/a Noah Phone Clinic v Kago & another [2025] KEBPRT 259 (KLR)

Kiberu t/a Noah Phone Clinic v Kago & another (Tribunal Case E187 of 2024) [2025] KEBPRT 259 (KLR) (25 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 259 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E187 of 2024

J Osodo, Chair & Gakuhi Chege, Member

April 25, 2025

Between

Samuel Mweru Kiberu t/a Noah Phone Clinic

Applicant

and

Joe Kago

1st Respondent

Wellspring Marketing Agent

2nd Respondent

Ruling

A. Dispute background 1. The tenant moved this Tribunal vide a Reference dated 9th December 2024 under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 with a complaint that the 1st respondent through the 2nd respondent illegally removed the tenant’s movable tools of trade on 3rd December 2024 and locked the suit premises.

2. The tenant filed a Notice of Motion under a Certificate of Urgency dated 9th November 2024 in which he sought for the following orders; -i.That the application be certified as urgent.ii.That the respondents be ordered to give the tenant access to the suit premises by reopening the same, failure to which the tenant be allowed to break in with the assistance of the O.C.S Molo Police Station pending the hearing and determination of the suit.iii.That the respondents be restrained from threatening, harassing, intimidating, illegally evicting or in any other manner interfering with the tenant’s occupation of the suit premises.iv.That the O.C.S Molo Police Station do ensure compliancev.That costs of the application be provided for.

3. The application is supported by an affidavit of even date in which the applicant/tenant deposes that he has been a lawful tenant at the suit premises behind Maziwa House since October 2024. He affirms that he has consistently paid the agreed monthly rent of Ksh. 6,000 and had also paid a similar amount as a deposit.

4. That despite this, on 3rd December 2024, the landlord, through an agent, allegedly removed his business tools and locked the premises without any notice or valid reason, in violation of Cap 301, Laws of Kenya.

5. The tenant claims that the landlord is now trying to evict him unlawfully, which he believes is an attempt to frustrate his business investment. He seeks for the Tribunal’s intervention to reopen the premises, return his tools, stop any harassment or eviction attempts, and recognize his tenancy as controlled under the law.

6. The Tribunal granted interim orders of injunction pending the determination of the matter.

7. The landlord/1st respondent filed a replying affidavit dated 10th January 2025, in which he deposes that the applicant is not his tenant and clarifies that the premises in question were rented by Veronica Wanjiku Muigai, who entered into a tenancy agreement with Wellspring Marketing Estate Management, the agency managing the property. The said tenancy agreement is annexed as “JK-1”.

8. The landlord/1st respondent denies allowing Veronica Wanjiku Muigai to sublet the premises to the applicant and emphasizes that the applicant is a stranger to him. He also refutes claims regarding the applicant's tool of trade mentioned in the supporting affidavit.

9. Furthermore, the landlord reiterates that he has no business dealings with the applicant and requests that the court dismiss the applicant's application in the interest of justice.

10. The tenant/applicant filed a further affidavit dated 31st January 2025 in which he refers to paragraph 4 of the 1st respondent's affidavit, which indicates that the tenancy agreement was made with Veronica Wanjiku Muigai, who is identified as the applicant’s wife. That on the day the said tenancy agreement was executed, the applicant was out of town and that he instructed his wife to execute the said tenancy agreement on his behalf.

11. The tenant/applicant details several issues he has faced, including significant disruptions to his business operations. He states that he has made payments for rent, including Ksh 6,000 for November 2024, despite experiencing power disconnections that were reported by the previous business owner, Noah Wanjai. That this power loss has severely affected his business, which relies on electricity for output. He mentions that he has attempted to resolve these issues with both respondents but received little to no assistance.

12. Additionally, the applicant/tenant reports that his tools of trade were damaged, leading him to file a report with the police. He claims that the respondents' actions have been intended to intimidate him and disregard the substantial investment he has made in the premises.

13. The Tribunal directed that the matter be canvassed by way of written submissions. Only the landlord/1st respondent complied by filing his submissions dated 7th February 2025. We shall consider this submission and all other documents filed as we deal with the issues for determination.

B. Issues for determination 14. The following are the issues for determination; -a.Whether there exists a landlord/tenant relationship between the parties herein.b.Whether the tenant is entitled to the orders sought in the application dated 9th December 2024. c.Who shall bear the costs of the application?

Issue (a) Whether there exists a landlord/tenant relationship between the parties herein. 15. The Tribunal’s jurisdiction is conferred by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301, Laws of Kenya in respect of controlled tenancies. We refer to the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989): where it was stated as follows;“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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

16. In his submissions as well as replying affidavit, the landlord/1st respondent contends that there is no landlord/tenant relationship between him and the applicant herein because the applicant has not produced any proof to show that he has been paying rent for the suit premises. The landlord also adds that the tenancy agreement is between him and one Veronica Wanjiku Muigai.

17. The tenant on the other hand has sworn in his affidavits that he is the tenant at the suit premises and that he has been paying rent for the suit premises and that he has annexed Mpesa statements to prove the same.

18. We have perused all the documents filed by the tenant/applicant and there is no copy of any rent payment to prove the said allegations.

19. The tenant further claims in his further affidavit, that the said Veronica Wanjiku Muigai is his wife and that on the material day when the said tenancy agreement was executed, he was out of town for other matters and that he instructed his wife who is his business partner to execute the tenancy agreement on his behalf

20. The existence of a landlord/tenant relationship is a legal prerequisite to the exercise of jurisdiction by this Tribunal. In absence of such a relationship, the Tribunal has no jurisdiction (see the case of Pritam – vs- Ratilal & Another (1972) EA 560 at page 563).

21. Having perused all the documents filed in this matter, we find that the tenant has not filed any documents/receipts to prove payment of rent to the landlord herein despite claiming to have filed Mpesa statements.

22. We have also perused the tenancy agreement which is dated 14th September 2024 and we note that the said agreement is between one Veronica Wanjiku Muigai and the landlord/1st respondent.

23. Following the analysis above, we find and hold that there is no evidence of existence of a landlord/tenant relationship between the applicant and the 1st respondent/landlord herein, therefore, this Tribunal lacks jurisdiction to determine this matter.

Issue (b) Whether the tenant is entitled to the orders sought in the application dated 9th December 2024. 24. As analyzed above, this tribunal has found that there exists no evidence of a landlord/tenant relationship and therefore this tribunal is not able to grant the reliefs sought in the application. We therefore proceed to dismiss the case for want of jurisdiction.

Issue (c) Who shall bear the costs of the application? 25. Under section 12(1)(k) of Cap. 301, Laws of Kenya, costs of any suit before this tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall order costs of the application to the landlord.

C. Orders 26. In conclusion, the following final orders commend to us; -a.The application and reference dated 9th December, 2024 are hereby dismissed for want of jurisdiction.b.All interim orders are discharged and/or set aside.c.Costs of KES. 6,000 to the landlord/1st respondentIt is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25th DAY of APRIL 2025. HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)HON GAKUHI CHEGE - (PANEL MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of:All parties present in person.