Otianga & another v Omodho [2024] KEBPRT 193 (KLR)

Otianga & another v Omodho (Tribunal Case E044 of 2023) [2024] KEBPRT 193 (KLR) (5 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 193 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E044 of 2023

P Kitur, Member

February 5, 2024

Between

Josephine Otianga

1st Tenant

Caleb Okelo

2nd Tenant

and

Loren Akinyi Omodho

Landlord

Ruling

A. Parties and their Representatives 1. The Respondent/Landlord (hereinafter referred to as “the Landlord”) is the owner of premises known as Kisumu/Konya/5848 & 5855 (hereinafter referred to as “the premises”) and has let out part of the premises to the Tenants.

2. The Landlord is represented by the firm of D.O.E Anyul & Company Advocates.

3. The Tenants/ Applicants (hereinafter referred to as “the Tenant”) is a Tenant of the Landlord and occupies the premises.

4. The Tenants are represented by the firm of Omondi Abande & Company Advocates.

B. Dispute Background 5. The Tenant filed a Complaint against the Landlord stating that the Landlord had served her with an illegal termination notice. The Tenant equally filed an Application dated 11th July, 2023 seeking interim relief.

6. In response, the Landlord filed a Grounds of Opposition dated 1st August 2023, a Replying Affidavit dated 4th August 2023 and a Notice of Preliminary Objection dated 29th July 2023 challenging the Tribunal’s jurisdiction to determine the matter on the grounds that :-a.That the subject matter is a residential premise hence the Tribunal does not have jurisdiction to entertain the same.

7. I have considered the Landlord’s Preliminary Objection, the Submissions of both parties and wish to make a determination as hereunder.

B. List of Issues for Determination 8. The main issue for determination is as follows;a.Whether this Tribunal has Jurisdiction to hear and determine the matter over property designated as furnished permanent building

C. Analysis and Determination 9. Jurisdiction is everything and once challenged, a determination should be made before the Tribunal can proceed with further disposal of any matter thereto. The Tribunal has no option but to down its tools where want of jurisdiction is deemed or assumed not to exist. In the case of Owners of the Motor Vessel ‘Lillian” (s) versus Caltex Oil (Kenya) Ltd [1989] KLR1, the Court stated as follows:Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion 12. Jurisdiction is everything and once challenged, a determination should be made before the Tribunal can proceed with further disposal of any matter thereto. The Tribunal has no option but to down its tools where want of jurisdiction is deemed or assumed not to exist. In the case of Owners of the Motor Vessel ‘Lillian” (s) versus Caltex Oil (Kenya) Ltd [1989] KLR1, the Court stated as follows:Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion 12. Jurisdiction is everything and once challenged, a determination should be made before the Tribunal can proceed with further disposal of any matter thereto. The Tribunal has no option but to down its tools where want of jurisdiction is deemed or assumed not to exist. In the case of Owners of the Motor Vessel ‘Lillian” (s) versus Caltex Oil (Kenya) Ltd [1989] KLR1, the Court stated as follows:Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that is without jurisdiction.

10. The question therefore arising is whether there exists a tenancy relationship between the Tenant and the Landlady subject to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

11. The question therefore arising is whether there exists a tenancy relationship between the Tenant and the Landlady subject to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

12. Based on the evidence tendered before the Tribunal, the Landlord’s contention that the property was residential in nature having been furnished by her remains uncontroverted.

13. The description above does not fall under what would be termed as a business premise within the meaning of the definitions of a shop, a hotel, or a catering establishment as defined under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, as follows;“shop” means premises occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or money’s worth;“hotel” means any premises in which accommodation or accommodation and meals are supplied or are available for supply to five or more adult persons in exchange for money or other valuable consideration;“Catering establishment” means any premises on which is carried out the business of supplying food or drink for consumption on such premises, by persons other than those who reside and are boarded on such premises;

14. In Republic v Chairperson - Business Premises Rent Tribunal at Nairobi & another Ex-Parte Suraj Housing & Properties Limited & 2 others [2016] eKLR, the Judge cited with approval the case of Pritam vs. Ratilal and Another Nairobi HCCC No. 1499 of 1970 [1972] EA 560 where it was stated as follows:“Therefore the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a Tribunal; otherwise the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction.”

15. From the foregoing, the Tenancy herein having been over property that is designated for residential use does not fall within the ambit of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, which therefore ousts this tribunal’s jurisdiction to hear and determine the dispute.

16. I also take note of the Landlord’s Grounds of Opposition where she states that the Tenants vacated the premises on 30th June 2023 which as well remained uncontroverted.

17. I therefore proceed to order as follows;

D. Orders 18. The upshot is the Tenant’s Reference and Application dated 11th July 2023 are hereby dismissed in the following terms:a.The Landlady’s Preliminary Objection is hereby upheld.b.The Tenant’s Complaint and Application are hereby struck out.c.Each party shall bear their own Costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 5TH FEBRUARY 2024 IN THE ABSENCE OF THE PARTIES.HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALHON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNAL