Samuel Kahururu, Edwin Odari, Elizabeth Wangui, Bryan Nderitu, Osodo Ogomo & Agnes Muloya v Hydromasters Drilling Company Ltd & Co-Operative Society Ltd [2022] KEBPRT 65 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E017 E114 & E023 OF 2021 (CONSOLIDATED) (NAIROBI)

SAMUEL KAHURURU……………………………………….TENANT/1ST APPLICANT

EDWIN ODARI………………………………………………..TENANT/2ND APPLICANT

ELIZABETH WANGUI……………………………………….TENANT/3RD APPLICANT

BRYAN NDERITU……………………………………………TENANT/4TH APPLICANT

OSODO OGOMO……………………………….…………….TENANT/5TH APPLICANT

AGNES MULOYA……………..……………………….……..TENANT/6TH APPLICANT

VERSUS

HYDROMASTERS DRILLING COMPANY LTD...HEAD TENANT/1ST RESPONDENT

CO-OPERATIVE SOCIETY LTD...................................LANDLORD/2ND RESPONDENT

RULING

1. BPRT cases numbers E114 of 2021, E023 of 2021 and this suit were consolidated on 13th May 2021.  This ruling concerns the preliminary objections filed by the 2nd Respondent on 5th May 2021, 12th May 2021 and 11th June 2021 which notices are brought on the following grounds;

a. That Agnes Muroyo Mulongo lacks locus standi to sue the 2nd Respondent, the 2nd Respondent has never transacted any business with the said Agnes Muroyo Mulongo.

b. That this honourable court has no jurisdiction to hear and determine this suit as the tenancy in question is not a controlled tenancy as defined under section 2 of Cap 301.  The alleged tenancy, though illegal was in a written lease for 5 years and 3 months.

c. That Agnes Muloya (the 6th Respondent in BPRT No E017/2021 has an ongoing suit No. E023/2021 against the Respondent regarding the same subject matter.

d. That the Tenants in BPRT No E114 of 2021 did not instruct any advocate to file the case.

e. That the suits ought to be struck out.

2. The relationship between the 1st and 2nd Respondents is governed by two lease agreements since 2010 which were for a period of fifteen years ending in the year 2025.  The 1st Respondent further states that it has lease agreements with the Tenants (Applicants) for a lease period of five years and three months.  The 1st Respondent has stated that there exists no contractual relationship between the Applicants and the 2nd Respondent.

3. The 2nd Respondent on its part has stated that the Tenants/Applicants have entered into lease agreements with the 2nd Respondent for a period of five years and five months.  The Applicants/Tenants admit that they entered into these tenancy agreements with the 2nd Respondent but argue that they entered into the said lease agreements to avoid harassment by the Auckland Auctioneers.  The Tenants therefore state that the 2nd Respondent ought not to be allowed to benefit from its wrong doing.  The Tenants challenge the validity of the said leases due to the duress applied to the Tenants at the time of entering into the said agreements.

4. The Tribunal is empowered under section 12 (1) (a) of Cap 301 to determine whether or not any tenancy is a controlled tenancy.  Under section 12(4) of Cap 301, 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 therein as it deems fit.

5. It is now settled that the Tribunal can only exercise its powers over controlled tenancies.  A controlled tenancy has been defined under section 2 of Cap 301 as follows;

“Controlled tenancy” means 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 or

iii. Relates to premises of a class specified under subsection (2) of this section.

6. The tenancy between the 1st and 2nd Respondents is for a period of fifteen years and therefore clearly outside the jurisdiction of this Tribunal as per the above definition.  The tenancy between the 1st Respondent and the Tenants, though challenged by the 2nd Respondent as illegal is for a period of five years and three months, it is also outside the jurisdiction of the Tribunal.  The tenancy between the 2nd Respondent and the Tenant is for a period of five years and three months, it is also outside the jurisdiction of this court.

7. In all the scenarios, the tenancies are not controlled tenancies and the Tribunal therefore lacks jurisdiction to hear and determine the same.  The Tenants challenge their tenancies with the 2nd Respondent on the basis that the same were executed under duress.

8. It is noteworthy that they have not denied executing the same, they have also not stated that they are not complying with the same on the basis of the said duress neither have they sought to have the same declared as invalid, oppressive, illegal, null and void.  In the absence of any such declaration, the Tenants remain bound by the tenancy agreements they signed with the 2nd Respondent.  It is not for the Tribunal to rewrite the agreement between the parties or to find that the parties meant more or less of what is stated in their agreement.

9. In the circumstances, I do find that the Tribunal has no jurisdiction to hear and determine this suit.  To that extent, the 2nd Respondent’s notices of preliminary objection are allowed with costs to the Landlord/2nd Respondent.  The consolidated references are hereby dismissed with costs to the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma (Vice Chair) this 28thday of January, 2022in the presence of Kingorifor theTenant, Ngangafor the2nd Respondentand in the absence of the1st Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL