Musa v Kioko t/a Bigview Investments Limited [2025] KEBPRT 195 (KLR)

Musa v Kioko t/a Bigview Investments Limited (Tribunal Case E265 of 2024) [2025] KEBPRT 195 (KLR) (23 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 195 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E265 of 2024

M Makori, Member

January 23, 2025

Between

Margaret Kalekye Musa

Tenant

and

Joseph Kioko t/a Bigview Investments Limited

Landlord

Ruling

1. The present claim was filed vide a reference and an application dated the 26th November 2024 supported by the supporting affidavit of Margaret Kalekye Musa.

2. In response the landlord filed a Notice of appointment and replying affidavit dated the 17th December 2024 alleging that the tenant is in rent arrears and should not be allowed to enjoy any injunctive orders.

3. The tenant also filed a preliminary objection on December 17, 2024, arguing that no tenant-landlord relationship exists and that the Landlord has been wrongly sued.

4. From the totality of the pleadings filed by parties and submissions, several issues arise for determination. In arriving on a determination on the matter it is proper to establish whether a there exists a landlord-tenant relationship and if so whether the Application is merited.

i. Whether the Notice of preliminary objection is merited. 5. That through the preliminary objection by the landlord the existence of a landlord-tenancy relationship and as such the landlord espouses that the tribunal lacks the requisite jurisdiction to hear and determine this suit.

6. The Landlord has also made claim that Joseph Kioko has been wrongly sued as the Landlord.

7. In determining whether this tribunal has the requisite jurisdiction it is important to note that this Tribunal derives its jurisdiction under the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act with a concern on specific premises, to protect tenants from eviction or exploitation, along with related matters and incidental issues.

8. Further the issue of the court’s jurisdiction has been aptly discussed in several cases including the case of Republic v Chairperson - Business Premises Rent Tribunal at Nairobi & another Ex-Parte Suraj Housing & Properties Limited & 2 others [2016] eKLR, the Judge cited with approval the case of Pritam vs. Ratilal and Another Nairobi HCCC No. 1499 of 1970 [1972] EA 560 where it was stated as follows:“Therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a Tribunal; otherwise, the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction.”

9. It is crucial to note that the Tribunal has been given limited information to resolve the preliminary objection, as no further documents, such as a reply or submissions, were provided to aid the court’s decision.

10. However, in determining whether this the tribunal had the benefit of assessing the documents attached and marked as Jk 1 under the landlords replying affidavit which includes the Proclamation of attachment and distraint of Movable property and Notification of sale of property.

11. The Notification of Sale is dated November 25, 2024, which is the same date this suit was filed before the Tribunal. Additionally, the notification clearly indicates that the debtor's name is Margaret Kaleyke Musa, who is seemingly the tenant from whom the items were to be seized for auction.

12. Without any other prove to disprove the fact that the said goods were carted away on the exact day of filling of this suit or thereafter it would be this tribunal assertion that indeed at the time of filling the tenant was in the premise and therefore enjoyed the benefits of a landlord tenant relationship.

13. The Landlord has also made claim of Mr Joseph Kioko being wrongly sued however no evidence has been provided to show that indeed that he is not the landlord.

14. It can be inferred from the annexures in the replying affidavit that the Landlord intends to indicate that the correct party to be sued is Big View Investments Limited, rather than him personally. However, no documentation has been provided to confirm that Big View Investments is a registered company and not merely a business name and as such, it should be sued in its proper legal capacity.

15. By dint of the above, the preliminary objection is dismissed.

ii. Whether the application is merited. 16. In the application, the tenant seeks among other orders a restraining order against the Landlord by himself, his servants including Alfajiri Auctioneers from advertising, selling, disposing or in any way interfering with the tenant’s goods and tools of trade, payment for loss of business, goodwill and damages of an amount of Ksh 2,000,000 and a break in order to gain unhindered access which orders are to be enforced by the OCS Mombasa Central police station.

17. In her supporting affidavit the tenant has alleged that she operates a bar and restaurant business and that on the 25th of November 2024 this business was locked despite there being a disputed rent arrears claim. She claims to have it attached under paragraph 8 but the same has not be provided.

18. The tribunal also notes under paragraph 3 of the supporting affidavit that she pays a monthly rent of Ksh 116,000 per month however no explanation has been made to guide the tribunal on how parties arrived to the disputed ksh 20,000 and if her rental dues have been paid.

19. On the other hand, the landlord has submitted a rental statement in the replying affidavit, showing that the tenant has accumulated rental arrears.

20. The same is not controverted by the tenant and as such the tribunal is inclined to admit the claim that there indeed exists rental arrears on the subject property.

21. Given the existence of rent arrears, it would be a miscarriage of justice to grant the tenant restraining orders, as the fundamental principle of "He who seeks equity must come with clean hands" applies.

22. In the upshot and based on the foregoing the tribunal finds that the reference by the Tenant is unmerited and makes the following orders; -a.The reference and the application dated 26th November 2024 are hereby dismissed.b.Each party shall bear their own costs.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 23RDJANUARY,2025. HON. MIKE MAKORI (MR.)BUSINESS PREMISES RENT TRIBUNAL