Mohammed Hussein v Omar Mohammed [2021] KEBPRT 335 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 23  OF 2020  (NAIROBI)

MOHAMMED HUSSEIN.......................................................TENANT/RESPONDENT

VERSUS

OMAR MOHAMMED..........................................................APPLICANT/LANDLORD

RULING

1. By a notice of motion dated 24th February 2021, the Applicant/Tenant came to court seeking for a temporary injunction against the Landlord to restrain him from harassing and/or trying to evict him from Al-Swad Lodging and Al-Swak Hotel in Isiolo Town.

2. He further seeks for a mandatory injunction restraining the Landlord, his agents and/or any other persons acting for the Landlord including the police and OCS Isiolo Police Station from harassing and/or trying to evict the tenant from the said premises.

3. The application is supported by the Applicant’s affidavit of even date.

4. The applicant  depones that he has been running the lodging and Hotel business for a long time and paying rent to the Landlord without default.

5. On 23rd February 2021, the Landlord with the aid of his agents and the police forcefully tried to evict the Applicant from the suit premises and tried to remove his assets therefrom.

6. He is therefore seeking for the court’s protection from being evicted.

7. The Respondent/Landlord did not file any replying affidavit and when the matter came up for hearing, his counsel opposed the application on points of law.

8. The gist of objection is that the Tribunal has no jurisdiction to hear and determine the matter as the suit premises do not fall under Cap. 301, Laws of Kenya.

9. The Respondent contends that there is no tenancy agreement or proof of payment of rent.

10. The Respondent further argued that the property was subject matter of Isiolo Succession  Cause no. 4 of 2018 where he is the administrator and that the estate subscribes to Islamic Law.  This line of submissions was opposed by the Tenant’s counsel as there was no affidavit in reply filed to support the same.

11. The application was argued orally on 11th March 2021 and ruling reserved for 16th April 2021.

12. I have considered the application and find that the only issue for determination is whether the Applicant is entitled to the orders sought.

13. In absence of any replying affidavit to controvert depositions made by the Applicant on existence of the tenancy, I have no reason to doubt that it exists.

14. Contrary to the argument by the Respondent that lack of a written tenancy agreement would deny this court jurisdiction, I hold that section 2 (1) (a) of Cap. 301, Laws of Kenya recognizes tenancies which have not been reduced into writing.

15. Assuming that it is true that the suit premises was subject matter of succession proceedings before the Isiolo Law Courts, that would not in any way oust the jurisdiction of this Tribunal which is a special jurisdiction granted by parliament over all business premises whose period of tenancy does not exceed 5 years.

16. In conclusion, I am satisfied that the Applicant is entitled to protection from harassment and eviction by the landlord.

17. This should not be construed to mean that he is protected from paying the reserved rent and as such is directed to continue paying rent to the Landlord.

18. Costs of the application assessed at Kshs.20,000/- are granted to the Tenant.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 16TH DAY OF APRIL,  2021

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISE RENT TRIBUNAL

In the presence of:

Ashaba holding brief for Mutuma for the Respondent

Majani holding brief for Mr. Kipkoskei for the Tenant