Sayed Abdul Satar v Sharrifa Said Abdulrehman & Fatma Mohamed Ahmed [2021] KEBPRT 135 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 132 OF 2021 (MOMBASA)

SAYED ABDUL SATAR.........................................................TENANT/APPLICANT

VERSUS

SHARRIFA SAID ABDULREHMAN

FATMA MOHAMED AHMED.............................LANDLORDS/RESPONDENTS

RULING

1. This Respondent’s notice of preliminary objection dated 8th July 2021 is primarily to the effect that this Tribunal lacks the jurisdiction to hear and determine the application dated 8th June 2021 as well as the reference filed by the Tenant on 8th June 2021.  The reason for the objection is that there exists a lease between the parties for a period of five years and three months which period exceeds the time limit for the Applicant to be considered a protected Tenant under section 2(1) of Cap 301.

2. The lease agreement referred to in the notice of preliminary objection is the one also referred to in the affidavit of the Tenant/Applicant and marked as SAS – 1.  The lease is for a period of five (5) years and three (3) months commencing from 1st October 2018 to December 2023.  Clause 2(8) of the lease agreement provides as follows;

“This tenancy agreement may be terminated by either party on serving a one (1) calendar month notice of termination in writing to the other or surrendering one (1) month rent in lieu of the said notice.”

3. The issue for determination is whether the tenancy between the parties is a controlled tenancy or not and whether the Tribunal therefore has jurisdiction to hear and determine the dispute between the parties.

4. Under section 2(1) of Cap 301, a controlled tenancy has been defined 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.

Provided that no tenancy to which the government the community or a local authority is a party whether as Landlord or Tenant shall be a controlled tenancy.

5. A reading of the above section of Cap 301 and clause 2 (g) of the lease agreement between the parties clearly brings the lease agreement between the parties within the definition of a controlled tenancy.

6. I have read the submissions of the counsel for the Tenant/Applicant and I am in agreement with the views and conclusions expressed therein.  Having come to the conclusion that the tenancy between the parties is a controlled tenancy, the Respondent’s notice of preliminary objection dated 8th July 2021is hereby dismissed with costs to the Tenant.

a. The application dated 8th June 2021will proceed by way of written submissions.  Parties have twenty-eight days to file and exchange their submissions.

b. Matter be mentioned on 16th December 2021.

c. Interim orders are extended.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

05. 11. 2021

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 5thday ofNovember 2021 in the presence of Mr Nangali for the Tenantand in the absence of theLandlordandcounsel.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL