SS Malonza Advocates LLP v Githinga [2024] KEBPRT 335 (KLR)

SS Malonza Advocates LLP v Githinga (Tribunal Case E917 & E920 of 2023 (Consolidated)) [2024] KEBPRT 335 (KLR) (14 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 335 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E917 & E920 of 2023 (Consolidated)

Andrew Muma, Ag. Chair

January 14, 2024

Between

SS Malonza Advocates LLP

Applicant

and

David Githinga

Respondent

Ruling

A. Parties and Representatives 1. The applicant, S.S Malonza LLP, is a Tenant who rented space for business at LR No. 209/409/7 located along Ngong’ Road within Nairobi City County (hereinafter known as the ‘the Tenant’).

2. The Applicant/Tenant is acting in person.

3. The Respondent, David Githinga is the Landlord and owner of property known as LR No. 209/409/7 located along Ngong’ Road within Nairobi City County (hereinafter known as the ‘the suit premises’).

4. The Firm of Gatheru Gathemia Company Advocates appears for the Respondent/Landlord.

B. The Dispute Background 5. The dispute in this matter arose when the landlord on September 19, 2023 contracted the services of Moran Auctioneers who proclaimed the movable property in the premises and intended to cart it away after 14 days and sell it anytime thereafter.

6. Through a reference and application both dated September 20, 2023, the Tenant moved this honourable tribunal seeking among other orders that pending the hearing and determination of the reference, the Tribunal grant an injunction restraining the landlord by himself, his servants or through his agents from taking up, carrying away, selling, disposing off, alienating or in any manner or form dealing with the tenant’s property.

7. Vide an order issued on October 30, 2023, the Tribunal certified the matter as urgent, issued an order restraining the landlord by himself, his servants or through his agents from taking up, carrying away, selling, disposing off, alienating or in any manner or form dealing with the tenant’s property.

C. Tenant’s Case 8. The Tenant states that it entered into a tenancy agreement with the Landlord on October 30, 2018 in respect of Jadala Place,5th Floor, Office Number 5. 6, Ngong’ Lane off Ngong’ Road and November 25, 2018 in respect of the same premises.

9. The Tenant claims that on September 19, 2023, Moran Auctioneers under the instructions of the Landlord proclaimed the Tenant’s movable property in the premises with intentions to cart the property away after 14 days and thereafter sell the same.

10. The Tenant also avers that the property that the proclaimed property are its tools of trade and are in actual use and occupation of the suit premises.

D. Landlord’s Case 11. The Landlord avers that the tenant failed to pay the rent reserved and service charge on time and it was in arrears as early as the 2nd quarter of the term and the same persisted till September 2021.

12. The tenant has since refused and or ignored to pay the rent and service charge and is in arrears of Kshs.1,463,853. 90.

13. The Landlord also avers that due to the outstanding balance and the tenant’s refusal to pay he instructed his advocates to instruct Moran Auctioneers to distress for rent and retake the premises.

14. The landlord further states that the tenant was aware of the auctioneer’s instructions and had been in communication with them as (evidenced by the thread of emails annexed in the replying affidavit of David Githanga dated October 17, 2023) and kept promising to pay the outstanding balance.

E. Jurisdiction 15. The jurisdiction of this honourable court has been contested by the landlord vide a Notice of Preliminary Objection dated October 12, 2023.

16. It is the Landlord’s submissions that the lease agreement was in writing and was for two consecutive terms of more than five years each and the termination clause stated that the tenancy could only be terminated because of a breach of any of the conditions referred to in the lease. Therefore, the landlord submits that the tenancy is unprotected.

F. Issues for Determination 17. I have carefully perused all the pleadings and evidence presented before this honourable tribunal by the parties. It is therefore my respectful finding that the issue for determination is;a.Whether the tribunal has jurisdiction to hear this matter

G. Analysis and Findings 18. This Tribunal has the duty to interrogate the question of jurisdiction before making any further step in line with the case of Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] eKLR where the Court of Appeal held as follows:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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.

19. As was stated by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. ...”

20. The jurisdiction of the Business Premises Rent Tribunal is governed by the Landlord and Tenant Shops Hotels and Catering Establishments Act cap 301 Laws of Kenya (hereinafter the Act). The preamble to the Act states that:“It is an Act of Parliament to make provisions with respect to certain premises for the protection of tenants of such premises form eviction or from exploitation and for matters connected therewith and incidental thereto.”

21. Further, according to the Act, the jurisdiction of this Honourable Tribunal is limited to controlled tenancies.

22. A controlled tenancy is defined under section 2 of the Act as follows: -“controlled tenancy” means a tenancy of a shop, hotel or catering establishment—a.which has not been reduced into writing; orb.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 as tenant, shall be a controlled tenancy;

23. The Landlord’s contention that the Tribunal lacks jurisdiction to hear this matter is hinged on the allegation that the tenancy in contention is not a controlled one as premised under section 2 of The Act.

24. The lease agreement filed by both parties’ states that the lease term is for a period of 5 years and 3 months which exceeds the 5-year period provided for in section 2 of The Act.

25. The tenancy agreement also provides for a termination clause which reads as follows;‘Breach of Covenants’ and states as follows ‘if the rent or any part of thereof shall at any time remain unpaid for fourteen(14) days after becoming payable, whether formally demanded or not, or if at any time thereafter the tenant is in breach of any covenants or conditions referred to in the lease, it will be lawful for the landlord to re-enter the premises and thereupon the lease will cease to be without prejudice to any rights and remedies which may have accrued to the landlord against the tenant in respect of any breach of covenant”

26. The clause therefore provides for breach of covenant to pay rent, as the only reason for the landlord to re enter the premises and in extension obtain vacant possession. This act does not qualify as a termination as set out in section 2 of cap 301 as such the tenancy is unprotected tenancy.

27. Therefore, based on my keen analysis of the evidence presented and law, The Tribunal lacks jurisdiction to hear the reference as presented by the Tenant and the matter in its entirety. H. OrdersThe upshot is that the landlord’s preliminary objection dated October 12, 2023 is hereby upheld in the following terms:a.The tenant’s reference and application dated September 20, 2023 are hereby dismissed;b.Each party shall bear their own costs.c.The same orders apply for Tribunal Case Number E920 of 2023. d.30 day stay of execution granted.

HON. A MUMA - AG. CHAIR/MEMBERHON JACKSON ROP - MEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, delivered and signed atNairobi on this 14th day of January 2024 in presence of Makau for the Applicant/Tenant and No appearance for the Landlord/Respondent.HON. A MUMA - AG. CHAIR/MEMBERHON JACKSON ROP - MEMBERBUSINESS PREMISES RENT TRIBUNAL