Olal v Mkoko & another [2024] KEBPRT 301 (KLR)

Olal v Mkoko & another (Tribunal Case E055 of 2023) [2024] KEBPRT 301 (KLR) (17 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 301 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E055 of 2023

N Wahome, Member

January 17, 2024

Between

Millicent Adhiambo Olal

Applicant

and

Eunice Rosemel Mkoko

1st Respondent

Henry Odera Odawa

2nd Respondent

Ruling

1. This Ruling relates to the Tenants/Applicants application dated the 14/9/2023. The same is supported by the affidavits of the Applicant dated the even date of 14/9/2023, Replying Affidavit filed in court on the 23/11/2023 and finally the further Affidavit sworn on the 15/12/2023.

2. The ruling further relates to the landlord’s application dated 25/9/2023 and notice of preliminary objection dated 10/11/2023. The same are supported by the 1st Respondents Affidavits sworn on the 25th September 2023, the Replying Affidavit sworn on the 23/10/2023 and the supplementary affidavit sworn on the 14/12/2023.

3. The Tenant in her said application dated 14/9/2023 principally sought for the following reliefs:-i.She be allowed unlimited access to the 1st floor of the building known as Kisumu/5/109 owned by the Respondents and which they had locked up,ii.The Respondents irregular rent increment be suspended,iii.The Respondents be restrained from any harassment of the applicant or in anyway interfere with her use of the same.iv.The Respondents be prohibited from terminating their tenancy with the Applicant.v.That the Respondents be ordered to compensate the Applicant for the losses incurred by the closure of the demised premises, andvi.The OCS of either Kisumu or Kondele Police station to help in compliance with the orders of this Tribunal

4. On their part, the Respondents in their application dated 25/9/2023 sought for the following reliefs,i.The tribunal to stay, quash and or set aside the orders issued on the 19/9/2023 pending the determination of this application.ii.The Ruling/order of 19/9/2023 be reviewed, varied and/or set aside in toto.iii.That upon grant (sic) of prayer 2-8, this Honourable Tribunal be pleased to strike out, dismiss and/or quash the plaintiffs/Respondent’s suit Application forthwith for want/lack of jurisdiction.

5. I cannot really comprehend what the Respondents intended with this particular prayer as they do not have prayers running to 8. Also, and if I granted prayers 2-8 of the Landlord’s application, then this matter would settle in favour of the Tenant. I however believe, and this is from the run of pleadings, that the Respondents intended to ask for the dismissal of the Tenant’s prayers 2-8 in her application dated 14/9/2023.

6. The respondents further sought for the enforcement of their orders if granted by the OCS Kisumu Police Station. The costs of this matter was also sought.

7. In the preliminary objection dated 10/11/2023, they sought for the dismissal of the Applicants suit and application on the grounds that:-a.The suit offends the provisions of the landlord and Tenant (shops, Hotels and Catering Establishments) Act, Cap. 301 Laws of Kenya.b.That the Honourable court does not have jurisdiction to proceed with the case.

8. The case for the Tenant is that:-i.Herself and her business have been Tenants in plot no. Kisumu/5/109 occupying the ground floor since 1st October, 2002. Initially, one Albert Odawa now deceased was her landlord until, 2018 and is now effectively replaced in that capacity by the Respondents.ii.She needed to expand her business and that when the 1st floor of the same building became vacant, she got into an oral agreement with the 1st respondent to rent the same effective the 1/9/2023 at Kshs.11,000/- per month (She annexed statements of accounts marked “MA0-2” as evidence of rent payment).iii.That she took possession of the 1st floor of the building and carried out repairs and renovations thereof.iv.That the landlord locked the premises on the 1st floor on the 1/10/2023 and also sought to increase the rent payable by Kshs.9,000/- to Kshs.20,000/-.v.She asserted that the respondent also advertised the 1st floor as vacant and invited new Applicants for tenancy as she continued to harass and intimidate her.vi.The actions of the respondents were in breach of the Act, that is Cap. 301 and their actions were therefore unlawful.vii.The respondents were not issuing rent cards nor receipts for rent paid.viii.The demised premises was commercial and there were five (5) Tenants in all and who operated businesses in the building and non of the spaces in the building was used as a dwelling house.ix.She operated a business of an office and workshop which offered training in production and sale of water hyanth products and when the Agreement to rent the 1st floor was entered into, the respondents knew that it would be used for business.x.It was the respondents who requested her to renovate the 1st floor at her cost before occupation and which she did.xi.The 1st floor was always occupied by her business partners namely Kisumu Innovation Centre Kenya (Kick) as a business and there had been no complaint.xii.All the additional structures on the premises which have since been removed were erected with the consent of Albert Odawa to help in creating spaces for producers being trained by the 2nd Applicant, subcontractors and marketers for the products.xiii.Had not sublet any of the spaces and challenged the respondents to strict proof of the contrary.xiv.To access the ground floor and 1st floor premises, the respondents broke windows, padlocks and locks and carried the same away.

9. The case for the Respondents as presented by the 1st Respondent is that:-i.That plot no. Kisumu/5/109 is a strictly residential premises. It was registered in the names of her deceased husband Mr. Albert Odawa but she has since acquired letters of administration.ii.She has never entered into any lease agreement relating to the 1st floor of the building. She was in the process of renovating the same after the previous tenant left the premises.iii.The tenant had erected structures around the premises without her consent and which she was sub-letting receiving much higher rent than the respondents.iv.The tenant changed the premises from a residential to commercial premises without the consent of the County Government of Kisumu nor herself.v.Tenant had made false allegations to the police with forged documents and had her arrested. On investigations, the police discharged her and her cash bail was refunded to her.vi.She needed to upgrade the building so that the same would be beneficial to the estate.vii.This Tribunal did not have jurisdiction to try this matter as the subject matter was a residential building governed under Cap. 296 of the laws of Kenya.viii.She asserted that she could not vouch for the lease agreement on the ground floor also as the same seemed forged.ix.Denied that the Applicant took up possession of the 1st floor on the 1/9/2023 as the same was pending renovations.x.To confirm that the 1st floor was a dwelling house, a map was produced to prove the same as a dwelling house. The same is marked “ERM 3”.xi.Further that the application for water meter for the entire premises was to serve domestic purposes.xii.She produced receipts for purchase of materials which were claimed to have been bought in readiness for the renovation of the 1st floor space.xiii.That there was still an advert inviting Tenants for the occupation of the 1st floor.xiv.The respondents concluded that the notices of termination and increase of rent as issued were regular for increment of rent under the rent restriction Act Cap. 296 Laws of Kenya.

10. I have looked and perused the Tenant counsel’s submissions and those of the Respondent’s dated 4/12/2023 and 28/11/2023 and register my appreciation on the depth of research and which will greatly aid this Tribunal in reaching a just determination.

11. Having looked and perused all the materials placed before me as above, am of the view that the issues for consideration to help determine this matter are the following:-a.Whether this tribunal has the requisite jurisdiction to determine this matterb.Whether the Applicant’s have proved their case,c.What the Respondent’s have proved their claim,d.Who should bear the costs of the preliminary objection and the applications herein,

12. Appreciating that jurisdiction as it has been described and largely defined, it is everything. This court has a statutory obligation that is mandatory to first determine on the same once raised. I will proceed to comply and discharge that responsibility.In the case of motor vessel “Lilian ‘s’ v Caltex Oil (Kenya) Ltd (1989) eKLR the court had this to state on the issue of jurisdictions,“It is for this reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court……………” I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado”.12. The same court of Appeal in the above cited case of Motor Vessel ‘Lillians”s’ supra proceeded to further hold that:-“Jurisdiction is everything. Without it, a court has no power to make one more step…. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

13. It then follows whether that issue is determinable on the basis of the preliminary objection dated 10/11/2023 and the pleadings in the respondents Application.In the locus classicus case of Mukisa Biscuits Manufacturing co. Ltd v West – End Distributors (1969) EA 606 the court stated that:-“A Preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit, a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

14. I Further find comfort on the place of preliminary objection’s in the case of Ayatim and allied workers union Kenya v Kenya Airways Ltd and 3 others (2015) eKLR where the court held that,“….a preliminary objection may only be raised on a pure question of Law. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed as they are prima facie presented in pleadings on record”

15. I fully associate myself with the sentiments expressed in those threshold setting precedents without reservation. Am also called upon to immediately, without delay and before taking any further proceedings in this matter decide on the issue of jurisdiction.

16. I will endevour to determine on this issue from the materials before me. The Applicant is clear that the demised premises and in particular the 1st floor is a business premises. On her part the respondent contends that the entire building is a dwelling house. A residential premises for domestic use.

17. It is my view that indeed land reference no Kisumu/5/109 is used for commercial purposes. No sufficient information was presented to court to confirm under what registration regime the property is registered. The sketch plan presented by the respondent cannot effectively vouch for that.

18. In my view, the registration documents for the file would have spoken to that subject. Such documents are readily available at the relevant land registries. Also a letter from the Kisumu City Government speaking to the standing of the title would have helped.

19. Most importantly for this tribunal is the tenor and purposes of the lease agreements got into between the Applicant and the respondents. From my analysis it is not in doubt that the late Albert Odawa rented the entire building for various businesses. The respondents continued the trend.

20. By this I am informed by the evidence that is glaring and on record by both the parties.

21. The initial lease agreement dated the 1/10/2002 between the late Albert Odawa and the Applicant also included Hyacinth 9 crafts as a Tenant. Why would the 1st Applicant have required to share a dwelling house with a business entity?.

22. I have also looked at the Respondents Replying Affidavit sworn on the 23/10/2023. In it there is attached a letter marked “ERM-2” by M/S Kisumu Innovation Centre (Kick) Limited. The letter in part says,“…..We are sincerely grateful for the excellent relationship we have always had and the prompt response from your end when it came to the renovation of the office”.

23. The same letter proceeds to state thus:-“………It was prudent to just relocate given that our clients have also been affected by the High inflation and thus affecting their ordering patterns which may affect us in paying the new rent charged”.

24. In a further letter by the said company and annexed to the Applicant’s Affidavit filed on the 23/11/2023 as exhibit MA-1 and dated 18/9/2023, the same was addressed to “M/S Kick Artisans”. The letter states that:-“Established in 1993 kick has been at the Kibuye office premises since the building construction in 1994. At the time, it leased both floors of the building from the late Albert Odawa it then went on to rent additional premises that had been newly constructed by Albert in the neighbouring plot. Kick had an excellent relationship with the late Albert Odawa until his untimely death in 2018. Unfortunately after 29 years at the Kibuye premises kick has made the unfortunate decision to move”.

25. The letter continued to state that,“all assets belonging to Kick Trading have been moved to Dunga in exception of the working shed and its furniture (Tables, shelves and cabinets etc). the shed will be demolished, moved and then rebuilt at the Kick village in Dunga premises by 24th October, 2023. The rebuilt shed will ensure appropriate working premises and shelter to Kick artisans in Dunga”.

26. The letter concludes thus:-“It is with this in mind that we want to alert all Kick artisans to make arrangements to move their belongings and products by October 18, 2023. Kick Artisans who want to be accommodated in Dunga should inform Kick in writing by 9th October 2023”.

27. There is also the uncontroverted evidence that Kisumu Sacco also operated in the building namely Kisumu/5/109. Indeed a bill board was displayed in the Applicants supporting affidavit sworn on the 14/9/2023 and marked MAA (1) (b) to that effect.

28. Indeed the respondent herself in her supporting affidavit sworn on the 25/9/2023 admits that:-“That to make it worse, the Plaintiff has constructed another illegal structure within the plot without my consent which she has rented out for commercial purposes and receiving rent on the same. The illegal structure must be demolished forthwith too”.

29. In her submissions, the Respondent admitted that the Applicant had taken over the possession of the 1st floor and was using the same as a business premises. It was submitted that:-“The Applicant took advantage of being a tenant on the ground floor unit to illegally take possession and occupation of the unit on the 1st floor and set it up for her business knowing very well that the 1st Respondent was leasing it as a dwelling house……”

30. In all it is my determination that since construction in 1994 as ably demonstrated by M/S Kick Limited and further evidence by the Applicants and the Respondents themselves, Title no. Kisumu/block 5/109 been used as a commercial entity. Any other evidence to contract the evidence on record would be a fallacy.

31. The relationship between the Applicants and the Respondents is therefore governed by Section 2(1) of the Act, Cap. 301 and within the jurisdiction of this Tribunal. “For case of reference Section 2(1) provides that:-A tenancy of a shop, hotel or catering establishment:-a.Which has not been reduced into writing and whichi.Is for a period not exceeding five years, or’’

32. The agreement between the Applicants and the Respondents was oral and was consummated with the payment of Kshs.11,000/- being the rent for the month of September, 2023. The Applicants have annexed exhibit no. MA0-3 to that effect. The Respondent in her replying affidavit acknowledges the same at paragraph 7 thereof by stating that:-“………..she irregularly, hastily and without agreement paid what is totally to the previous rent rates”.

33. Finally in her submissions the Respondent states that, “And in a bid to frustrate the 1st Respondent, the Applicant hastily made payments in contravention with the notices issued to the tenants for increase in rent and improperly moved the court with misleading information”. I therefore proceed to dismiss the Respondents preliminary objection as lacking in any merit.

Issue No. B Wheher the Applicants have proved their Case 34. From the evidence on record, the Applicants have been able to demonstrate that they entered into an oral lease agreement with the Respondents for the 1st floor of Title no. Kisumu/block 5/109, that they paid the requisite rent in advance and took possession of the demised premises.

35. They therefore became protected tenants not subject to the whims of a landlord but Cap. 301 of the laws of Kenya. It is apparent from record that this dispute is about resistance by the Tenant to pay the arbitrarily increased rent. The recourse of the Respondent was not to harass, intimidate and lockdown the demised premises. It was to approach this tribunal appropriately. Her Application as filed herein and dated 25/9/2023 was merely reactionary in response to the Applicants reference and application dated 14/9/2023.

36. The Respondents undated notice to purportedly increase rent on the demised premises is unknown to the law. It is incompetent and defective at face value and I would say of no purpose and inconsequential.

37. Section 4(2) of the Act provides that:-“A Landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under such a tenancy, shall give notice in that behalf to tenant in the prescribed form”.

38. The prescribed form pursuant to Regulation 4(1) of the Regulations to the Act provide that:-“A notice under Section 4(2) of the Act by a landlord shall be in form in the schedule to these Regulations.

39. Further in the case of Manaver N. Alibhai ta v DianiBoutique – v South Coast Fitness and Sports Centre Limited Civil Appeal No. 203 of 1994 the court stated that:“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy Section 4(1) of the Act states that in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt by the Tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice inform A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice”.

40. In Lall v Jeypee Investment Ltd (1972) EA at page 512 the court held that:-“Cap. 301 is an especially enacted piece of legislation which creates a privileged class of tenants for the purposes of affording them the protection specified by its provisions against the ravages of predatory landlords…….This is an Act that requires in so far as giving of the notice is concerned absolute and complete, not merely substantive compliance with its peremptory provisions”.

41. I therefore make a finding that the Applicants grievances are qualified under Cap. 301 and will proceed to grant the reliefs sought as will be more clarified in the final disposal of the matter herein.

Issues No. C- Whether the RespondentS have proved their claim 42. From the evidence on record, it is clear that the Respondents have dismissably failed to proof any aspect of their claim under the Application dated 25/9/2023. To the contrary, the Applicants have been able to factually, through documents and related materials and by the respondents own admissions demonstrated to be candid and on the right side of the law.

43. Without much ado nor reiterating my earlier analysis and findings, I would proceed to dismiss the Respondents application dated 25/9/2023.

Issue D. Who should bear the costs of this suit 44. From my findings above and the general conduct of the Respondents, there is no compelling nor justifiable reason to depart from the wisdom of Section 27 of the Civil Procedure Act. I would therefore condemn the Respondents to bear the costs of the reference dated 14/9/2023, the Applicants application of the even date, the respondents application dated 25/9/2023 and the preliminary objection dated 10/11/2023.

45. I appreciate, that the disposal of the Applicants herein have fully compromised the reference and there is nothing left to be heard on the reference and the same is therefore determined in the same terms with the Application dated 14/9/2023.

46. In conclusion, the orders that commend to me in resolution of this matter are that:-i.That the purported removal of the Applicants as Tenants of the 1st floor in title no. Kisumu/Block 5/109 and the purported notice to increase rent are declared illegal and of no legal effect nor consequence.ii.That the Applicants shall have quiet occupation and use of the ground and 1st floor of Title No. Kisumu/Block 5/109 unless otherwise intervened by the Application of the law.iii.That the OCS of either Kisumu Central or Kondele Police Stations or both shall ensure strict compliance with the orders herein.iv.The Applicants have the costs herein assessed at Kshs.30,000/-.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JANUARY 2024. HON. NDEGWA WAHOMEMEMBERBUSINESS PREMISES RENT TRIBUNAL17/1/2024Ruling delivered in the presence of M/S Owuor holding brief for Mr. Kowino for the Landlady/Respondent.Mr. Okello holding brief for Mr. Wetsusa for the Tenant/Applicant.HON. NDEGWA WAHOME - MEMBERBUSINESS PREMISES RENT TRIBUNAL