Wambugu v Atieno [2022] KEBPRT 734 (KLR)

Wambugu v Atieno (Tribunal Case E196 of 2022) [2022] KEBPRT 734 (KLR) (14 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 734 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E196 of 2022

Andrew Muma, Vice Chair

September 14, 2022

Between

Hillary Wambugu

Landlord

and

Yvonne Atieno

Tenant

Ruling

Parties and Their Representatives 1. The applicant is the landlord of the suit premises in this matter, who owns a shipping container which is converted into eight shops, situated at the Bus Station off Mfangano Street, Nairobi. (Hereinafter the “landlord”).

2. The firm of S Ng’ang’a Ndung’u & Co Advocates represents the landlord in this matter.

3. The respondent is a tenant and occupies one of the shops within the suit premises wherein she conducts her business (hereinafter the “tenant”).

4. The firm of Sinana & Company Advocates represents the tenant in this matter.

The Dispute Background 5. Vide a sale agreement dated November 2, 2020, the tenant executed a sale agreement and purportedly purchased a shop from one Bernard Murugu Mwaniki at Kshs 600,000. 00. The tenant claimed that at no point before or after the sale was there mention of the landlord being the owner of the suit premises.

6. On the other hand, the landlord submitted in his further affidavit that he had contracted the above-mentioned Bernard Murugu to collect rent on his behalf. As such, the landlord asserted that in collecting rent, the same created a controlled tenancy between himself and the tenant.

7. On February 28, 2022, the landlord moved this tribunal by way of reference and complained inter alia, that the tenant regularly defaulted in payment of rent and owed him a sum of Kshs 80,000. 00, which was an accumulation of rent from July 2021 to February 2022.

8. Further, on February 28, 2022, the landlord filed a notice of motion application under certificate of urgency under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act (Cap 301). The landlord sought among other orders, that pending the hearing and determination of the application herein, the tenant be ordered to vacate the suit premises.

9. On March 7, 2022, the tribunal ordered inter alia, that the landlord’s application dated February 28, 2022 be fixed for hearing on April 6, 2022.

Jurisdiction 10. The jurisdiction of this tribunal is in dispute.

The Landlord/Respondent’s Claim 11. The landlord filed a notice of motion application under certificate of urgency and supporting affidavit dated February 28, 2022 which pleadings form the basis of this claim.

12. Further, he filed submissions dated June 20, 2022 and the matter was fixed for hearing on September 14, 2022.

The Tenant/Applicant’s Claim 13. The applicant filed a notice of motion application and supporting affidavit dated November 9, 2021.

14. The applicant filed written submissions dated June 7, 2022.

Issues for Determination 15. The main issue raised for determination is whether this honourable tribunal has the jurisdiction to hear and determine the present matter.

Analysis and Determination Whether the respondent’s failure to reconnect electricity supply was lawful whether this tribunal has the jurisdiction to hear and determine this matter 16. At the outset, this tribunal makes reference to section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) which defines a controlled tenancy 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;

17. In this case, the tenant/respondent in her submissions disputed the existence of a controlled tenancy between themselves and the landlord/applicant, and asserted that the applicant failed to furnish evidence before this tribunal to prove a landlord-tenant relationship. She further submitted that the landlord could not purport that this tribunal is empowered to determine the matter since the present dispute relates to ownership of the suit premises.

18. I find it crucial to highlight section 12(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act which states:1. A tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this act, and in addition to and without prejudice to the generality of the foregoing shall have power—a.to determine whether or not any tenancy is a controlled tenancy

19. This tribunal takes note of the evidence furnished by the landlord/respondent, marked ‘HW-1’, which depicts a detailed account of rent collection which the landlord’s agent had been collecting on the landlord’s behalf.

20. Therefore, based on the above, it can be inferred that the landlord and tenant herein intended to create a controlled tenancy under the Landlord and Tenant Act. This tribunal makes reference to the High Court’s decision in Al-Riaz International Limited v Ganjoni Properties Limited [2015] eKLR (Kasango J) in which the plaintiff therein submitted that the tenancy relationship between the parties therein was a controlled one falling under the purview of the Landlord and Tenant Act. At paragraph 19 of its judgment, the court held as follows:Thus, if a tenancy satisfies any of the conditions provided at section 2, the tenancy automatically becomes a controlled one and subject to the provisions of Cap 301 and it does not matter whether the parties had agreed that the provisions of Cap 301 shall not apply to their relationship

21. Having determined that the applicant and respondents forged a relationship within the meaning of a controlled tenancy, this tribunal has the jurisdiction to hear and determine the present matter. Pursuant to section 12(4) of the Landlord and Tenant Act, it stipulates:In addition to any other powers specifically conferred on it by or under this act, a tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the Tenant, and may make such order thereon as it deems fit.

22. From the foregoing, I hold that the preliminary objection dated May 10, 2022 fails. The tenant/respondent had no evidence to substantiate his claim that this tribunal lacks jurisdiction to determine the present matter. Further, Bernard Murugu had no locus to enter into a sale agreement of any nature as an agent the landlord remains the one with the proprietary rights to sell. In any event, the tenant/respondent ought to have added the said Bernard Murugu as an interested party.

23. Further, the sale agreement produced seems to be one of purchase of goodwill and not the property. It is clear from the tenant’s supporting affidavit that she had been paying rent before and after the purported sale of the stall located within the suit premises.

24. In view of the above, I find that this tribunal has jurisdiction to determine the present case as filed by the applicant.

Orders 25. This tribunal makes the following orders:a.The upshot is that the tenant/respondent’s preliminary objection dated May 10, 2022 is hereby dismissed.b.The landlord/applicant files a statement of account in 14 days and submissions as to rent arrears.c.The tenant/respondent to respond in 14 days.d.This matter shall be heard on October 31, 2022e.Costs shall be in the cause.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 14TH DAY OF SEPTEMBER, 2022 IN THE PRESENCE OF NG’ANG’A FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL