Trident Outdoor Limited v Shiloah Investments Ltd [2021] KEBPRT 64 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E048 OF 2021 (KAKAMEGA)

TRIDENT OUTDOOR LIMITED...............................................TENANT/APPLICANT

VERSUS

SHILOAH INVESTMENTS LTD.............................LANDLORD/1ST RESPONDENT

RULING

1.  The Landlord/1st Respondent’s notice of preliminary objection dated 27th October 2021 is to the effect that;

“This honourable Tribunal lacks jurisdiction to hear this suit/application/reference by virtue of the fact that this is not a controlled tenancy as the parties have entered into an agreement for a period of six (6) years and the agreements do not contain provision for termination otherwise than by effluxion of time.”

2.  The Tenant/Applicant at paragraph 4 of its supporting affidavit sworn by one Vinrod Okwach on 15th October 2021 states;

“That I entered into a lease agreement with the 1st Respondent/Landlord herein on 23rd February 2021 for a period of six years beginning 1st April 2021. ”

3.   The 1st Respondent/Landlord at paragraphs 5, 6 and 7 of its replying affidavit sworn by one Suku Elisha Sawin on 27th October 2021 states as follows;

5 – That I know on terms of the agreement in the letter of offer clause 4 the term of tenancy is 6 years.

6 – That I knew that the Applicant and the 1st Respondent entered into a further agreement sublease for rental of premises the Applicant occupies.

7 – That I am advised by my advocate on record based on both agreements on the letter of offer and the sublease agreement, it is clear that the premises are to be let out for a period of 6 years and therefore this Tribunal lacks jurisdiction to entertain any matter concerning these agreements and that Cap 301 does not apply to the premises as it is not a controlled tenancy.

4.   It is common ground between the parties that the lease agreement between them is for a period of six years.  I have carefully read the letter of offer exhibited by the Tenant at paragraph 4 of its affidavit and the sub lease agreement exhibited at paragraph six of the 1st Respondent’s replying affidavit.   Both documents which govern the relationship between the Applicant and the 1st Respondent herein do not contain provision for termination otherwise than for breach of covenant within five years from the commencement thereof.

5.   The tenancy herein is therefore not a controlled tenancy as provided for under section 2 of Cap 301 which provides;

“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 of

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.   I am in agreement with the submissions by the 1st Respondent that in view of the lease period of six years and the lack of a termination clause otherwise than for a breach of covenant, this Tribunal clearly has no jurisdiction to hear and determine this matter.

7.   Consequently, the Tenant’s reference dated 19th October 2021 and the chamber summons dated 15th October 2021are hereby dismissed with costs to the Respondents.

8.   For avoidance of doubt, any orders issued in this matter are hereby discharged.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED BY HON CYPRIAN MUGAMBI NGUTHARI THIS 17TH DAY OF DECEMBER, 2021 IN THE PRESENCE OF MR MALALA FOR THE TENANT AND IN THE ABSENCE OF THE LANDLORD AND COUNSEL.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL