Mathew Onyinkwa Osiemo t/a Elbow Bar & Restaurant Nyanturango v Baria Binyanya Atenga [2022] KEBPRT 14 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E023   OF 2021  (KISII)

MATHEW ONYINKWA OSIEMO T/A ELBOW BAR &

RESTAURANT NYANTURANGO.....................................APPLICANT/TENANT

VERSUS

BARIA BINYANYA ATENGA..…........................... RESPONDENT/LANDLORD

RULING

1. Before me is a preliminary objection dated 11th December 2021 in which the Respondent contends that this Tribunal has no jurisdiction to hear and determine the instant suit under Section 2 of Cap. 301 since the lease agreement entered into between the two parties is for a period of 10 years.  As such it is contended that the application and the reference is misconceived, frivolous and/or an abuse of the due process of the court.

2. The tenant moved this Tribunal through a reference dated 19th November 2021 seeking to challenge the notice of termination of tenancy dated 22/9/2021 which is expressed to be issued by the landlord under Section 4(2) of Cap. 301 on grounds of default to pay rent for 3 months and intention to do major renovations.  The notice was to take effect on 1st December 2021.

3. The tenant filed a motion dated 12th November 2021 seeking injunctive reliefs against the landlord.  Among the documents annexed to the supporting affidavit is the lease agreement marked ‘M002’.  The same is for a period of 10 years with effect from 1st July, 2020.

4. At Clause 4 thereof, the lease stipulates as follows:-

“4. The lease is binding for a period of 10 years after which the lessee shall have a choice to renew the contract in writing or give a 30 days notice to renewal or termination of lease”.

5. Clause 6 thereof stipulates as follows:-

“6. That in the event of evacuation three months notice shall be served by either party”.

6. Under Section 2(1) of Cap. 301, Laws of Kenya, a controlled tenancy is defined to include a tenancy of shop, hotel or catering establishment which has been reduced into  writing but which contains a provision for termination otherwise than for breach of covenant within five years from the commencement thereof.

7. Clause  6 of the lease agreement entered between the parties herein allows either party to give three (3) months termination notice during the currency of the tenancy/lease.

8. This perhaps explains why the landlord issued the notice dated 22/9/2021 as the tenancy is controlled.  It is contradictory for the landlord having issued notice under Cap. 301, to now turn around and argue that the tenancy is not controlled.

9. In the premises, I am not satisfied that the preliminary objection has any merit and the same is dismissed with costs to the tenant.

10. The application dated 12th November 2021 and the reference shall be fixed for hearing and determination on merit.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MARCH 2022.

HON. GAKUHI CHEGE

VICE CHAIR

In the presence of:-

Molisa for the Landlord/Respondent

MS Ochieng for the Tenant/Applicant

Later

Order:  By consent application dated 11/12/2021 and reference of even date to be disposed of by way of written submissions with each party taking 14 days and the Applicant beginning.  Mention on 25/4/2022 to fix a ruling dat

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

21/3/2022