Kimathi & another v Kanyoni [2024] KEBPRT 5 (KLR)

Kimathi & another v Kanyoni (Tribunal Case E013 of 2023) [2024] KEBPRT 5 (KLR) (12 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 5 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E013 of 2023

Andrew Muma, Ag. Chair

January 12, 2024

Between

Pauline Wangui Kimathi

1st Applicant

Jackson Ndiritu Kamau

2nd Applicant

and

John Kanyoni

Respondent

Ruling

A. Parties And Representatives 1. The 1st Applicant, Pauline Wangui Kigathi, is the owner of plot number Karatina Township/B1/260 situated at Karatina within Nyeri County (hereinafter the “Landlord”) whereas the 2nd Applicant, Jackson Ndiritu Kamau is the grandson of the 1st Applicant and the agent (hereinafter the “Agent”).

2. The firm of G.M. Wanjohi, Mutuma & Co. Advocates represents the Applicants in this matter.

3. The Respondent, John Kanyoni, is an occupant of a section of the suit property (hereinafter the “Tenant”).

4. The firm of Maina Karingithi Advocates represents the Respondent in the matter.

B. Background Of The Dispute 5. The 1st Applicant/Landlord avers that the Respondent is a tenant of Karatina Block 1/260 (hereinafter “the suit premises”), being a subsection of Karatina Township/B1/260 (hereinafter “the suit property”), to which she claims to be the rightful owner. She further claims that the Respondent/Tenant has been in occupation of the suit premises since March 2021 and that the Respondent has not paid rent since then.

6. Moreover, the 1st Respondent claims that the Respondent/Tenant has proceeded to breach their agreement by conducting renovation that exceeded the scope of the agreed upon limit.

7. The Applicants moved this Tribunal vide an Application dated 7th February 2023 under a Certificate of Urgency and seeking orders that the Tribunal issue an ex-parte Interim Temporary Injunction Order against the Respondent/Tenant, their agents, servants, employees, heirs or assigns restraining them from constructing, demolishing and/or interfering with the Landlord’s building.

8. They also sought that there be an order restraining the Respondent/Tenant, their agents, servants, employees, heirs or assigns from carrying out any further repair work in the suit premises pending hearing and final determination of the application.

9. Additionally, they sought that there be an Order compelling the tenant to pay all the unpaid and outstanding rent which is in arrears.

10. In addition to this, they sought that the OCS Karatina Police Station be ordered to ensure compliance by the Tenant/Respondent and provide the Applicants with security and ensure peace prevails.

11. Vide an Order dated 13th February 2023, the Tribunal certified the matter urgent and ordered that a temporary injunction be issued against the Respondent/Tenant, their agents, servants, employees, heirs or assigns restraining them from constructing, demolishing and/or interfering with the Landlord’s building.

12. Moreover, the Tribunal ordered the OCS Karatina Police Station be ordered to ensure compliance by the Tenant/Respondent and provide the Applicants with security and ensure peace prevails. The Tribunal further ordered that the Respondent/Tenant pay the rents of January, February and March before hearing and subsequently every month thereafter as agreed.

13. The Landlord claims that the Tenant has since then failed and/or neglected to comply with the Court Orders.

C. The Landlord’s Claim 14. The Landlord avers that she is the lawful owner of the suit property situated at Karatina within Nyeri County.

15. The Landlord avers that the Tenant has been in occupation of the suit premises which have remained closed and not utilized since March 2021 and has not paid rent since then, being a monthly fee of Kshs. 9,000 and accumulating to Kshs. 216,000 for the period between March 2021 to February 2023.

16. The Landlord further avers that the Tenant was allowed to do floor repairs but he proceeded to demolish the building walls with the intention to convert it into a bar without obtaining consent or permission from the Tenant.

17. The Landlord states that the Tenant has been unresponsive and became hostile by attacking the Agent on 4th February 2023 upon the Agent requesting him to stop demolition of the walls of the suit premises. Subsequently, the Agent proceeded to report the incident to Karatina Police Station and got treated at Karatina Hospital where he obtained a medical report detailing his injuries.

18. Additionally, the Landlord states that the actions of the Tenant are illegal and not in conformity with the provisions of Cap 301.

D. The Tenant’s Claim 19. In response to the Landlord’s claim, the Tenant avers that the application filed by the Landlord lacks merit and ought to be dismissed for the reasons that a Landlord/ Tenant relationship did not exist as there was never an agreement between the Tenant and the Landlord and as such the Landlord/1st Applicant lacked the locus standi to institute this suit.

20. Additionally, the Tenant/Respondent avers that their relationship with the 1st Applicant/Landlord is that of Vendor/Vendee. In support of this, he claims to have expended a sum of about Kshs. 6,000,000 towards building the 1st Applicant’s houses in the suit property and that was implied to be adequate consideration in exchange for ownership of Karatina Block 1/260. In light of this, he lodged a complaint against the Landlord at DCI Mathira East at Karatina Police Station on grounds of obtaining money under false pretenses.

21. The Respondent/Tenant also contends that it was the Agent/2nd Applicant who in an attempt to stop the Respondent/Tenant from conducting the renovations, came to the premises and threatened him alongside demonstrating offensive conduct which occasioned destruction of the suit premises and theft of construction material as reported to Karatina Police Station.

E. Jurisdiction 22. The Respondent/Tenant contested the jurisdiction of this Tribunal on the grounds that the fails to exist a Landlord/Tenant relationship between the 1st Applicant and himself.

F. List of Issues For Determination 23. The issue that falls for determination is as follows;Whether there exists a Landlord/Tenant relationship between the 1st Applicant and the Respondent and as such whether the Tribunal has jurisdiction to determine this matter?

G. Analysis & Determination Whether there exists a Landlord/Tenant relationship between the 1st Applicant and the Respondent and as such whether the Tribunal has jurisdiction to determine this matter? 24. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya (the “Act”) provides for the statutory establishment of the Business Premises Rent Tribunal. The limits of the jurisdiction exercisable by the Tribunal are also explicitly set out therein. Section 12 of the Act grants the Tribunal its jurisdiction and 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 a controlled tenancy;

25. Section 2 defines a controlled tenancy as;“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 provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof;”

26. It goes without saying, that for there to exist a controlled tenancy, in addition to the requirements provided in the Act above, there must be a clear Landlord and Tenant relationship which is clearly defined according to the terms of the tenancy agreement or implied from their conduct.

27. Section 2 of Act defines a Tenant as;“in relation to a tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding, and includes a sub-tenant”

28. The same section above 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”

29. There is no lease agreement in this matter in addition there is no evidence of consistent payment of rent to enable the Tribunal make a determination of the existence of an unwritten tenancy agreement by conduct. The only payment made by the Tenant is a lumpsum payment in installments of Kshs. 500,000 and Kshs. 270,000 to the 1st Applicant and the 1st Applicant’s daughter, Susan Wanjiru Kamau, respectively and the same have been indicated to be for purposes of purchase of land. Notably, the Applicants have denied this fact even though they remain adamant to disclose the purpose of which they claim to have received the money for.

30. Therefore, it is my respectful and considered opinion that the matter before this Tribunal relates to ownership of the suit premises and is thus, outside our jurisdiction.

H. Orders 31. The upshot is that the Landlord’s Reference and Application dated 7th February 2023 is hereby dismissed with no orders as to costs.

HON A. MUMAAg Chair/MEMBERHON. JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 12TH DAY OF JANUARY 2024 IN THE ABSENCE OF THE PARTIES.HON A. MUMAAg Chair/MEMBERHON. JACKSON ROPMEMBERBUSINESS PREMISES RENT TRIBUNAL