The Kenya Institute of Management v Ng’ang’a [2022] KEBPRT 5 (KLR)

The Kenya Institute of Management v Ng’ang’a (Tribunal Case 161 of 2022) [2022] KEBPRT 5 (KLR) (Civ) (27 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 5 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 161 of 2022

Gakuhi Chege, Vice Chair

May 27, 2022

Between

The Kenya Institute Of Management

Applicant

and

Peter Rose Ng’Ang’A

Respondent

Ruling

1. The tenant moved this Tribunal vide a complaint dated 15th February 2022 under section 12(4) of Cap. 301, Laws of Kenya on grounds that it was a protected tenant under the Act since the lease agreement entered into with the landlords was for a period not exceeding five (5) years.

2. The second ground is that the tenant had been issued with a proclamation of alleged rent arrears in the sum of Kshs.5,055,361. 88 which it did not owe to the landlords and that if any money was owing, the claim by the landlords was excessive, exploitative and without justification.

3. The tenant simultaneously filed a motion of even date supported by affidavit seeking interim orders of injunction to restrain recovery of the said amount.

4. The Respondents filed a notice of preliminary objection dated 24th February 2022 to the effect that this Tribunal has no jurisdiction to hear and determine the present suit by virtue of the provisions of section 3 of cap. 301 which excludes parties with an agreement of six years from the purview of its jurisdiction and as such the suit cannot be maintained and should be dismissed with costs.

5. The landlords further filed a replying affidavit sworn on 1st March 2022 by Wycliff Ongwae, a director of property management in Tysons Limited which is the appointed management company/agent in respect of the suit premises attaching as annexure ‘WO1’ offer letters dated 16th June 2015 and 10th October 2016 showing that the premises were offered to the tenant for a period of six (6) years.

6. Upon expiry of the lease dated 16th June 2015 on 31st July 2021, it is deposed that the landlords and tenant voluntarily agreed to consolidate the initial leases and entered into a new lease over the suit premises for a period of six (6) years vide an agreement dated 24th August 2021 as evidenced by annexure ‘W02’ which is duly executed by the tenant.

7. It is the Respondents’ contention that as at the commencement of the lease on 1st August 2021, the outstanding rent payable by the applicant was Kshs.3,158,287. 91 and as such the application is incompetent and bad in law.

8. The Respondents have also exhibited a letter marked ‘W0-4’ in which the tenant acknowledged/admitted liability in rent arrears.

9. The applicant/tenant did not file any further affidavit to counter the depositions made in the replying affidavit and preliminary objection neither did it file submissions as directed by the Tribunal.

10. This Tribunal’s jurisdiction is conferred by section 2(1) of Cap. 301 Laws of Kenya which defines a controlled tenancy to mean:“………..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.ii.Contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof oriii.relates to premises of a class specified under subsection (2) of this section”.

11. I have looked at all the materials presented before this Tribunal by the landlords and I am convinced beyond any peradventure that the tenancy herein does not fall under section 2(1) of Cap. 301, Laws of Kenya and it follows that this Tribunal has no jurisdiction to adjudicate over the dispute.

12. Consequently, the final orders which commend to me are:-i.The preliminary objection dated 24th February 2022 is hereby upheld with costs.ii.The tenant’s application dated 15th February 2022 and the reference of even date is hereby struck out with costs.iii.The ex-parte orders issued on 17th February 2022 are hereby discharged/vacated forthwith.iv.The Respondents costs are assessed at Kshs.30,000/- all inclusive.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kimani for the LandlordNo appearance for the Tenant