Samuel Kaptalai Cheptoo,Isaac Kiptayor Cheptoo & Mariko Kiserich Limo v David Cullen [2020] KEBPRT 57 (KLR) | Controlled Tenancy | Esheria

Samuel Kaptalai Cheptoo,Isaac Kiptayor Cheptoo & Mariko Kiserich Limo v David Cullen [2020] KEBPRT 57 (KLR)

Full Case Text

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 149 OF 2019 (NAKURU)

SAMUEL KAPTALAI CHEPTOO

ISAAC KIPTAYOR CHEPTOO

MARIKO KISERICH LIMO..................................LANDLORDS

VERSUS

DAVID CULLEN...............................................................TENANT

RULING

The Landlords in the above reference filed a reference under section 12(4) of Cap 301 and a notice of motion dated 30th October 2019 under a certificate of urgency seeking leave to levy distress and record outstanding arrears of rent of shs 300,000/- plus an order for vacant possession of the suit premises.

The Tenant/Respondent filed a notice of preliminary objection dated 6th November 2019 challenging the jurisdiction of the Tribunal to hear and determine the dispute.  The Tenant also filed a replying affidavit sworn by David Cullen on 27th June 2020.  The Advocates of the parties have made oral submissions which are on record.  The dispute between the parties is more on issue of law than facts.

The following are the admitted facts.

1.   The Tenant in the reference first took possession of the suit premises pursuant to the lease agreement dated 2nd January 2009 between him and Samuel Kiptalai Cheptoo.  The suit premises is described as a 2 bedroom house at Kambi ya Samaki.

2.   Upon expiry of the first lease agreement, the Tenant entered into another lease agreement dated 1st January 2014 with Samuel Kaptalai Cheptoo, Isaac Kiyator Cheptoo and Mariko Kiserich Kiptoo for another period of 5 years at the monthly rate of shs 10,000/-.  The lease expired on 31st December 2018 and the parties have not entered into another lease agreement.

3.   On 4th June 2016 the Tenant entered into a sale agreement with Samuel Cheptoo and Isaac Cheptoo for the sale of the suit premises for a sum of Kshs 100,000.  The Tenant paid the renters shs 15,000/-.

4.   The sale of the suit premises was not completed.

5.   The Tenant continued to be in occupation of the suit premises.

The above facts are not in dispute.  The Tribunal upon consideration of all the pleadings in this matter and upon consideration of the oral submissions of the advocates of the parties makes the following findings;

1.   The Tribunal has no jurisdiction to hear and determine the dispute arising out of the sale agreement dated 4th June 2016.

2.   The Tenant did not cease to be a Tenant of the Landlord by virtue of the sale agreement dated 4th June 2016.

3.   The sale agreement dated 4th June did not refer to and/or invalidate the lease agreement dated 1st January 2014.

In any event, the sale agreement was not completed and the Tenant did not and has not become the owner of the suit premises.

4.   The relationship between the Tenant and that of the Landlord herein is that of Landlord and Tenant within the meaning of section 2 Cap 301.

5.   Upon expiry of the lease on 31st December 2018 the Tenant became a periodic tenant on the same monthly rent of shs 10,000/-.

6.   There is overwhelming evidence on record to show that the use of the suit premises is that of a business and/or hotel as defined under Cap 301.

7.   The Landlord has not served the Tenant with a notice to terminate the tenancy under section 4(2) of Cap 301 and they are not entitled to an order for vacant possession of the suit premises.

8.   The Tenant has not demonstrated to the Tribunal that he has paid rent from 2017.

All in all the Tribunal is satisfied under the Tenant’s preliminary objection has no merits.  The Tribunal allows the Landlord’s application dated 30th October 2019 and makes the following orders;

1.   Prayer 2 and 4 of the notice of motion dated 30th October 2019 is hereby granted.

2.   The Tenant shall pay the costs of the Auctioneer.

3.   The order issued above shall be stayed for 30 days from the date of delivery of the ruling to enable the Tenant to comply.

4.   The Tenant shall pay the Landlord costs of the application and other disbursements.

5.   Costs shall be agreed or taxed by the Tribunal.

Ruling dated and delivered this 26thday of May 2020 in the presence of Mr Oloo holding brief for Wekhombafor the Tenant.  Advocate for the Landlordabsent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL