Muongi v Lawrence & another [2025] KEBPRT 28 (KLR)

Muongi v Lawrence & another (Tribunal Case E1148 of 2024) [2025] KEBPRT 28 (KLR) (15 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 28 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1148 of 2024

CN Mugambi, Chair

January 15, 2025

Between

Fredrick Mukami Muongi

Landlord

and

Bob Mwenda Lawrence

1st Respondent

Purity Karimi Thauru

2nd Respondent

Ruling

1. On 31. 10. 2024, the Tribunal directed Counsel for the parties in this matter to submit on the issue of the jurisdiction of the Tribunal to hear and determine this dispute.

2. Both parties have filed their submissions and I have read them and will consider in this Ruling.

3. It is the Respondent’s submissions that the Tribunal lacks jurisdiction in this matter as the lease agreement in question is for a fixed term of ten (10) years and does not provide for termination within the first five (5) years for reasons other than breach of covenant.

4. The Applicant on his part submits that there exists a controlled tenancy between the parties for the reasons that there is a review clause under Clause 2 of the Lease Agreement which provides for a review after five (5) years and further that the permitted use of the premises is commercial which fits the definition of both a shop and a catering establishment.

5. The lease agreement at the center of this dispute is the one dated 22. 3.2023. Clause 2 thereof provides as follows;-The lease period between the parties herein shall be for a term of ten years from the date of execution of this agreement.”

6. I have not seen the review after five years alluded to by the Applicant. The only reference to five years is at Clause 3 of the agreement which shows a variation of the rent to the ……….It is not a termination clause neither does it affect the terms of the lease.

7. Section 2(1) of Cap 301 defines a controlled tenancy as follows;-“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 whichi.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.”

8. The lease agreement between the parties herein is for a period of ten (10) years and contains no termination clause otherwise than for breach of covenant. It clearly does not give rise to a controlled tenancy between the parties and the Tribunal therefore lacks the jurisdiction to hear and determine the same.

9. No further authority is necessary in view of the clear provisions of Section 2(1) of Cap 301 to declare that the Tribunal has no jurisdiction in this matter. Consequently, the Complaint by the Tenant dated 18. 10. 2024 is hereby struck out with costs to the Respondents.

10. This file is ordered closed.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JANUARY, 2025. HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Wambugu for the Respondent and Ms. Kagwiria for the Landlord