Ndirangu v Maingi & 2 others [2022] KEBPRT 739 (KLR)

Ndirangu v Maingi & 2 others (Tribunal Case E001 of 2022) [2022] KEBPRT 739 (KLR) (23 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 739 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E001 of 2022

Cyprian Mugambi Nguthari, Chair & Andrew Muma, Vice Chair

September 23, 2022

Between

Charles Wachira Ndirangu

Applicant

and

Joseph Waweru Maingi

1st Respondent

Highrise Agencies

2nd Respondent

John Maina

3rd Respondent

Ruling

Parties and their Representatives 1. The applicant Charles Wachira Ndirangu is the alleged tenant and had rented space on the suit property at Gatitu Shopping Centre for the business. (hereinafter known as the ‘tenant’)

2. The tenant appears in person in this matter.

3. The 1st respondent Joseph Waweru is the landlord and rented out space for the business in the suit property to the tenant at Gatitu Shopping Centre. (hereinafter the “landlord”)

4. The 2nd respondent Highrise Agencies is the estate agent for the 1st respondent and manages the commercial premises at Gatitu Shopping Centre.

5. The firm of Muchiri wa Gathoni & Co Advocates represent the landlord in this matter. haronmuchiri@yahoo.co.uk

The Dispute Background 6. The tenant has filed a reference and a notice of motion application dated January 4, 2022 under section 12 (4) of theLandlords and Tenants (Shops, Hotels and Catering) Establishments Act cap 301. The tenant was seeking that this honourable tribunal grants orders restraining the landlord from harassing, trespassing, evicting and interfering with the quiet possession by the tenant pending the hearing and determination of this matter.

The Tenant’s Claim 7. The tenant filed a reference and a notice of motion application dated 4th January 2022 to which he obtained interim reliefs.

The Landlord’s Claim 8. The agent has filed a replying affidavit dated 10th February 2022.

9. The 3rd respondent has filed a replying affidavit dated 10th February 2022.

List of Issues for Determination 10. It is the contention of this tribunal that the issues raised for determination are as follows;I.Whether there exists a tenancy relationship between the tenant and the landlord?

Analysis and Findings Whether there exists a tenancy relationship between the tenant and the landlord? 11. Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act chapter 301 laws of Kenya provides that;“In addition to any other powers specifically conferred on it by or under this act, a tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit”

12. The above provision allows the Business Premises and Rent Tribunal to in addition to the powers conferred upon it by the act investigate on any other matters that may be raised in relation to a controlled tenancy.

13. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Actchapter 301 laws of Kenya act at section 2 defines a controlled tenancy as;A 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;

14. In the present case, the tenant alleges that in December 2021 they rented out the suit property from the landlord and paid for the deposit, rent for the month of January 2022. That thereafter they locked the premises intending to move in and the landlord has since been interfering with the same by breaking the padlocks to the premises.

15. The landlord on the other hand has averred in their replying affidavit that they had indeed rented out the property to the tenant herein in December 2021. That thereafter on December 23, 2021 the tenant informed them that they were not pleased with the premises and required that the landlord refund the deposit and rent that they had paid, which they did.

16. In support of the above the landlord has annexed mpesa statements which show that they received payment from the tenant and thereafter returned the same to the tenant as requested.

17. The tribunal finds that the return of the deposit and the rent by the landlord to the tenant effectively terminated the tenancy relationship between them. The tenant’s consideration for the premises therefore is non-existent and a contract cannot be said to exist.

18. Additionally, the tenant has not provided any proof before this tribunal to the contrary. As a result, at the time the tenant filed the reference before this tribunal there did not exist a tenancy relationship between them.

19. In light of the foregoing, this tribunal finds that it is not clothed with jurisdiction to hear and determine the matter as there exists no tenancy relationship between the parties.

Ordersa)The upshot is that the tenant’s reference and application dated January 4, 2022 is hereby dismissed.b)The landlord shall have costs.

HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA (VICE CHAIR) THIS 23RD DAY OF SEPTEMBER 2022 IN THE PRESENCE OF MISS KING’OR HOLDING BRIEF FOR MUCHIRI FOR THE LANDLORD/RESPONDENT AND IN THE ABSENCE OF THE TENANT.**HON. A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL