Muthoni v Home Business Sacco & another [2025] KEHC 3057 (KLR)

Muthoni v Home Business Sacco & another (Civil Appeal 33 of 2023) [2025] KEHC 3057 (KLR) (Civ) (18 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3057 (KLR)

Republic of Kenya

In the High Court at Nyandarua

Civil

Civil Appeal 33 of 2023

KW Kiarie, J

March 18, 2025

Between

Mercy Nyambura Muthoni

Appellant

and

Home Business Sacco

1st Respondent

Boniface Mugo Waikwa

2nd Respondent

(Being an appeal from the ruling in Nyahururu Chief Magistrate’s CMCC No. 231 of 2021 by Hon. Stephen. O. Mogute – Senior Principal Magistrate)

Judgment

1. Mercy Nyambura Muthoni, the appellant, was the plaintiff in Nyahururu Chief Magistrate’s CMCC No. E231 of 2021. She had filed a claim for special damages following damage to her goods on the premises where she was a tenant of the second respondent. She contended that the first respondent's bursting of the waste pipe caused damage to her goods. The burst pipe had been installed with the express or implied authority of the second respondent.

2. The ruling of the learned trial magistrate regarding a preliminary objection indicated that the trial court lacked jurisdiction in the matter. Consequently, the preliminary objection was upheld.

3. The ruling aggrieved the appellant and filed this appeal through D.W. Mbugua & Company Advocates. She raised the following grounds of appeal:a.The learned trial magistrate erred in law, holding that the magistrate’s court was divested of jurisdiction.b.The learned trial magistrate erred in law and fact in holding that the issues raised in the suit were suitable for hearing and determination by the Business Premises Rent Tribunal in the first instance.c.The learned trial magistrate in law and fact by failing to consider the plaintiff’s/counsel’s submissions filed on 21st October 2022 together with the authorities cited, thereby arriving at an erroneous decision based on irrelevant/inapplicable propositions of the law.d.Consequently, the learned trial magistrate precipitated a travesty of justice against the appellant.

4. The first respondent opposed the appeal through Mathea Gikunju & Company Advocates. It was contended that the trial magistrate did not have jurisdiction in the matter. The appeal, therefore, lacked merits.

5. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act was enacted to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto.

6. Section 12 (1) of the Act provides as follows:(1)A Tribunal shall, in relation to its area of jurisdiction, have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—(a)to determine whether or not any tenancy is a controlled tenancy;b)to determine or vary the rent to be payable in respect of any controlled tenancy, having regard to all the circumstances thereof;(c)to apportion the payment of rent payable under a controlled tenancy among tenants sharing the occupation of the premises comprised in the controlled tenancy;(d)where the rent chargeable in respect of any controlled tenancy includes a payment by way of service charge, to fix the amount of such service charge;(e)to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy;(f)for the purpose of enabling additional buildings to be erected, to make orders permitting landlords to excise vacant land out of premises of which, but for the provisions of this Act, the landlord could have recovered possession;(g)where the landlord fails to carry out any repairs for which he is liable—(i)to have the required repairs carried out at the cost of the landlord and, if the landlord fails to pay the cost of such repairs, to recover the cost thereof by requiring the tenant to pay rent to the Tribunal for such period as may be required to defray the cost of such repairs, and so that the receipt of the Tribunal shall be a good discharge for any rent so paid;(ii)to authorize the tenant to carry out the required repairs, and to deduct the cost of such repairs from the rent payable to the landlord;(h)to permit the levy of distress for rent;(i)to vary or rescind any order made by the Tribunal under the provisions of this Act;(j)to administer oaths and order discovery and production of documents in like manner as in civil proceedings before the High Court, to require any landlord or tenant to disclose any information or evidence which the Tribunal considers relevant regarding rents and terms or conditions of tenancies, and to issue summons for the attendance of witnesses to give evidence or produce documents, or both, before the Tribunal;(k)to award costs in respect of references made to it, which costs may be exemplary costs where the Tribunal is satisfied that a reference to it is frivolous or vexatious;(l)to award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent;(m)to require a tenant or landlord to attend before the Tribunal at a time and place specified by it, and if such tenant or landlord fails to attend, the Tribunal may investigate or determine the matter before it in the absence of such tenant or landlord;(n)to enter and inspect premises comprised in a controlled tenancy in respect of which a reference has been made to the Tribunal.

7. The jurisdiction of the Tribunal established under the Act pertains to issues of rent and matters connected therewith and incidental thereto. The special damages the appellant claimed are not within the Tribunal's ambit. The learned trial magistrate erred in making such a determination. I am setting aside his ruling and ordering that the matter proceed to its logical conclusion before a magistrate of competent jurisdiction other than Hon. Stephen O. Mogute.

8. Costs of this appeal are awarded to the appellant.

DELIVERED AND SIGNED AT NYANDARUA THIS 18THDAY OF MARCH 2025KIARIE WAWERU KIARIEJUDGE