Ondego v Ntapayia [2025] KEBPRT 295 (KLR)

Ondego v Ntapayia (Tribunal Case E010 of 2024) [2025] KEBPRT 295 (KLR) (Civ) (22 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 295 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E010 of 2024

N Wahome, Chair & Joyce Murigi, Member

May 22, 2025

Between

John Ochieng Ondego

Applicant

and

Kelvin Ntapayia

Respondent

Ruling

1. This Ruling is two pronged. It is meant to resolve the issues in the Tenant/applicant’s notice of motion application dated 14/10/2024 and also those further raised in the Tenant’s notice of motion application dated 6/1/2025. In the initial application, the Tenant had sought for the following orders:-a.The landlord be restrained from interfering with his quiet possession and work from the premises known as Erereti Quarry Site.b.He be allowed unconditional access to the business premises known as Erereti Quarry site within Kajiado County.

2. The Tenant sought that the orders if granted, do subsist pending the hearing of the application and the reference also dated the 14/10/2024. The Tenant also sought for enforcement of the orders if granted by the OCS Kiserian Police Station and also for the costs of the suit.

3. The aforesaid reference dated 14/10/2024 and on which the application of the even date was founded, were both anchored on Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) hereinafter “the Act”. In the reference, the Tenant complained that:-“The Landlord has issued me with threats and ordered me to vacate my premises. I am left with no option than to seek this court’s intervention”.

4. What comes out from the record is that the orders of this court and which had been issued on the 11/11/2024 were never complied with. The landlord was also not responsive to the courts summons and this Triggered the filing of the 2nd notice of motion application by the Tenant. The same is dated 6/2/2025 and sought for the following reliefs.i.Spentii.That an order of committal be made against the Respondent to prison for such a period that this Honourable court may deem fit and just following the Respondents disobedience of court order made on the 11/11/2024 inter-alia.iii.That an order of fine against the respondent be granted to the applicants as the court may deem fit and just for disobedience of court order made on the 11/11/2024 inter-alia by the Respondents.iv.That the OCS Okwala Police Station to assist in compliance of these orders.

5. In answer to both the Applications and the reference, the landlord/Respondent filed the Replying Affidavit sworn on the 30/1/2025 and submissions of the same date. The Respondent in his pleadings aforesaid has raised two pertinent issues. One, that the demised premises was a quarry and therefore outside the jurisdiction of this court.

6. In our view and on perusal of the pleadings by the parties including submissions is first to decide on the question of jurisdiction as the same will impact on all the issues at hand for resolution. In this we find guidance in the case of the Owners of Motor Vessel “Lillian S” – vs- Caltex Oil (Kenya Ltd (1989) eKLR where Justice Nyarangi JA held that:-“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

7. According to the Respondent and in particular his averment at paragraph 9 of his replying affidavit he asserts that:-“having looked at the mandate of this Honourable Tribunal under the Landlord and Tenant ( Shops, Hotels and Catering Establishments )Act, Cap. 301 Laws of Kenya its my humble submission Erereti Quarry Site do not fall within its jurisdiction”.

8. There is no contest whatsoever that the premises/land in issue is a quarry from where building materials are mined or excavated. With that realization, it then begs the question whether this Tribunal has the wherewithal to supritend over this matter.

9. Section 2(1) of the Act has elaborately defined what is meant by a shop, Hotel or Catering Establishment. We doubt that a quarry like the Erereti Quarry site can fall within the provided definition by the law. In this, we find reliance in the case of Colts Construction Ltd – vs- Jane Wambui Mwangi & 9 Another KEELC 17883 (KLR) where the Environment and Land Court held that:-“It is not in dispute that the parties had let the land for purposes of quarrying stones. These activities in my considered view can neither be termed as shop, hotel and or catering establishment”.

10. The same court further proceeded to hold that:-“By parity of reasoning, the court holds that in the circumstances of this case land used for mining or quarrying building stones cannot be equated to offices for which services for money or money’s worth are undertaken”.

11. With that disposition, we abide by the findings thereof and declare want of jurisdiction by this court to take any further proceedings in this matter. we would therefore struck out the reference and notice of motion application dated 14/10/2024 and also the notice of motion application dated 6/1/2025.

12. On costs, we are of the view that the Landlord opted to disobey the orders of this court which were legitimate and in force. Indeed he never denied service of the same in his replying Affidavit dated 30/1/2025. We would therefore exercise our discretion under Section 12(1) k and direct that each party do bear own costs of these proceedings.

13. In the final analysis, the orders that commend to us are the following:-i.That the reference dated 14/10/2024 and the notice of motion Applications dated 14/10/2024 and 6/2/2025 are all struck out for want of jurisdiction.ii.That each party shall bear own costs of these proceedings.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF MAY 2025. HON. NDEGWA WAHOME, MBS - PANEL CHAIRPERSONHON. JOYCE MURIGI - MEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of the Landlord/Respondent and in the absence of Tenant/Applicant.