M/S at Consulting Limited v Imara Enterprises Limited & Icon Auctioneers [2021] KEBPRT 399 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 183 OF 2021 (NAIROBI)

M/S AT CONSULTING LIMITED...............................TENANT/APPLICANT

VERSUS

IMARA ENTERPRISES LIMITED.............LANDLORD/1ST RESPONDENT

ICON AUCTIONEERS….............................LANDLORD/2ND RESPONDENT

RULING

The Respondents have raised a preliminary objection seeking the dismissal of this suit in limine on the following grounds inter alia;

That this honourable Tribunal has no jurisdiction to hear or determine the Applicant’s application dated 22nd February 2021 and the reference thereto for the following reasons;

1.   There exists a written agreement dated 19th March 2015and accepted by the Applicant setting out all the terms of the tenancy.

2.   The tenancy agreement is for a term of ten (10) years.

3.   The agreement does not contain a provision for termination within five years from the commencement of the contract.

4.   The tenancy is therefore not a controlled tenancy.

5.   That the Tribunal has no powers or jurisdiction to issue the orders sought in the Tenant’s application.

6.   That the application is an abuse of the procedure and process of the Tribunal.

The main contention in the preliminary objection is as to jurisdiction, or rather the lack of it on the part of the Tribunal to deal with the Tenant’s reference.  The Tenant’s reference basically revolves around the issuance of an invalid notice of termination of the tenancy and an alleged illegal proclamation by the 2nd Respondent.

The issue for me to determine at this stage is whether the tenancy between the Applicant and the 1st Respondent is a controlled tenancy or not.

Section 2(1) of Cap 301 describes a controlled 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

III. ….

I have seen exhibit DKN – I in the 1st Respondent’s replying affidavit.  The same is revised offer for business space at Thika Bazaar, plot No. LR No. 4953/1573 Thika Municipality.  The terms of the offer are communicated in that letter of offer.  The lease commencement date is indicated as the 1st May 2015 and the lease period is expressed to be ten years.  The Tenant’s/Applicant’s affidavit in support of his application at paragraph 2 provides as follows;

2. “That sometimes on 1st May 2015 the Landlord/1st Respondent herein, being the owner of the premises situated on the parcel of land known as LR No. 4953/1573 entered into a lease agreement with the Tenant/Applicant herein for a ten-year lease.”

I note that paragraph 2 above is in consonance with the revised offer letter earlier referred to in this ruling.  I therefore am of the view that that letter of offer contained the terms of agreement between the parties herein, the same is in writing.  The Tenant has not controverted those terms.

The Respondent’s letter of offer containing the terms between the parties does not contain a clause for termination otherwise than for breach of covenant within five years from 1st May 2015.  It is for ten years.

In the circumstances, I am persuaded by the submissions filed on behalf of the Respondents and the authorities cited therein, that the Tribunal does not have jurisdiction to entertain this dispute.  I do find that the tenancy between the Applicant and the 1st Respondent is not a controlled one.  The notice of preliminary objection dated 17th March 2021 is allowed with costs

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling dated and delivered virtually by Hon. Cyprian Mugambi Nguthari this 22ndday of July 2021in the absence of the parties.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL