Mwangi Macharia & Simon Njoroge v Mohamed Hussein Ahmed, Nairobi Homes (Msa) Ltd & Swiftway Auctioneers [2021] KEBPRT 182 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 129 OF 2021 (MOMBASA)

MWANGI MACHARIA

SIMON NJOROGE.................................................TENANTS/APPLICANTS

VERSUS

MOHAMED HUSSEIN AHMED..............LANDLORD/1ST RESPONDENT

NAIROBI HOMES (MSA) LTD.......................................2ND RESPONDENT

SWIFTWAY AUCTIONEERS..........................................3RD RESPONDENT

RULING

1. Through a motion dated 8th June 2021, the Tenants/applicants are seeking in material part for a temporary injunction to restrain the landlord and the Respondents from proclaiming, removing and/or selling, disposing off, offering for sale by public auction pending hearing and final determination of this case.

2. The Tenants/applicants further seek for an order for valuation of the business premises occupied by them in plot no. 315/812, Mombasa and that future rents be deposited in this Tribunal pending determination of the case.

3. The application is supported by the affidavit of the 1st Tenant sworn on 8th June 2021 wherein he deposes that they are legal tenants in plot no. 315/812, Mombasa since June 2018 under a tenancy agreement dated 5th June 2018 marked ‘A’.

4. It is the Tenant’s case that they have been paying rent regularly whenever it falls due and are always issued with receipts by the Landlord.

5. They depose that in the year 2000, they became month to month tenants despite the lease being for 5 years 3 months.

6. Sometimes on 20th January 2021, the landlord’s agents are said to have refused to accept rent and instructed the 3rd Respondent to illegally levy distress for non-existent rent arrears. As a result a proclamation marked “C” was issued.

7. On 27th April 2021, the 2nd Respondent issued what the Tenants contend is an illegal notice to terminate tenancy with effect from 1st May 2021. The notice is attached to the application.

8. Fearing a possible eviction, the tenants filed the instant proceedings. This would make them lose their investment if not stopped by the Tribunal.

9. The application is opposed through a replying affidavit of Solomon M. Mutungi the Managing Director of the 2nd Respondent sworn on 29th June 2021 wherein this Tribunal’s jurisdiction is disputed since the lease relied upon by the Tenant is for a period of 5 years 3 months.

10. It is the Respondents’ case that no cause of action is disclosed by the 2nd Applicant and the complaint by him ought to be struck out.

11. According to the Respondents, no authority has been filed to enable the 1st Applicant sworn and sign documents on behalf of the 2nd Applicant.

12. The Respondents have attached documents showing that the 1st applicant was in arrears and had written a letter marked “SMM-4’ admitting the same evincing an intention to vacate the demised premises by 30th November 2021.

13. The Respondents aver that by the time the proclamation dated 20th January 2021 was issued, the 1st Applicant had rent arrears of Kshs.52,000/- which has since been settled. As such the proclamation was legal.

14. It is contested that the Respondents have denied the Applicant peaceful and quiet enjoyment of the tenancy as there was absolutely no evidence of unlawful proclamation, distress or eviction levied against the Applicants neither have there been violation of their right to justice, fairness, equity or the constitutional principles of rule of Law and natural justice.

15. As such the Respondents contend that the application lacks merit, is an abuse of court process, misconceived and bad in law which ought to be dismissed with costs.

16. On 14th July 2021, the application was ordered to be disposed of by way of written submissions, However, only the Respondents complied.

17. Going by the pleadings, the issues for determination in this matter are:-

(a) Whether this Tribunal has jurisdiction to hear and determine the reference.

(b) Whether the Applicants are entitled to the orders sought herein.

(c) Who is liable to pay costs of the suit?

18. In the case of the Owners and Master of the Motor Vessel ‘Joey’ and the Owners and Masters of the Motor Tugs ‘Barbara’ & Steve B” (2007) eKLR at page 7/15, it was held that the question of jurisdiction is a threshold issue and must be determined by a Judge at the threshold stage using such evidence as may be placed before him by the parties.

19. Citing Nyarangi J.A in the Owners of the Motor Vessel ‘Lilian ‘S’ – vs- Caltex Oil (Kenya) Ltd (1989) KLR it was held as follows:-

“ I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized…….of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no basis for a continuation of proceedings pending other evidence. A court of law down (sic) tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction………..”.

20. The tenancy agreement marked “A” attached to the 1st Applicant’s supporting affidavit clearly indicates that it is for a period of 5 years 3 months and has no termination clause other than for breach of covenants therein contained. This clearly removes the tenancy from being a controlled tenancy in terms of section 2(1) of Cap. 301 Laws of Kenya.

21. In view of this finding and guided by the cited decisions of the Court of Appeal, it is my view that this Tribunal has no jurisdiction to hear and determine the reference herein.

22. As to whether the Applicants are entitled to the orders sought in the application in issue, I find and hold that they are not. They have miserably failed to bring themselves within the principles espoused in the case of Giella – vs- Cassman Brown & co. Ltd (1973) EA 358.

23. As regards costs, they always follow the event and the Respondents are entitled thereto.

24. In the premises the following orders commend to me:-

(a) The application dated 8th June 2021 and the entire reference is dismissed with costs.

(b) The Respondents’ costs are assessed at Kshs.25,000/- against the Applicants.

DATED, SIGNED DELIVERED THIS 22ND DAY OF OCTOBER 2021 VIRTUALLY

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Miss Ondieki holding brief for Omwenga for Respondent

No appearance for the Tenant