Wamugunda v Njiru [2025] KEBPRT 304 (KLR)

Wamugunda v Njiru (Tribunal Case E043 of 2024) [2025] KEBPRT 304 (KLR) (5 June 2025) (Judgment)

Neutral citation: [2025] KEBPRT 304 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E043 of 2024

N Wahome, Chair & Joyce Murigi, Member

June 5, 2025

Between

Benjamin Geteria Wamugunda

Applicant

and

John Nyaga Njiru

Respondent

Judgment

1. This judgement is on the Landlord/applicant’s reference dated 18/7/2024 which was said to be founded on Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap.301) which we hereinafter refer to as “the Act. The landlord grieved that:-“The Tenant made Dorothy Geteria enter into a dangerous agreement that failed all the rules of lease for property leaning towards the Tenant as opposed to a balance of the two Tenant/Landlord”.

2. The reference was accompanied by a Notice of motion application which sought for the following reliefs:-i.Spentii.That the Tribunal declares the Tenancy agreement as void ab-initio, due to uncertainty of the area of lease and purpose of the lease.iii.That the Respondent be temporarily prohibited and restrained from haphazard partitioning and conducting unapproved and undefined intended activities in his allocated areas pending hearing and determination of this application.iv.That the respondent be temporarily prohibited and restrained from putting boards in plot No. 199 Runyenjes.v.That the Respondent be compelled to stop interference with the existing electricity supply in the premises pending the hearing and determination of this case.vi.That the Respondent be compelled to give access to the surveyor hired for proper demarcation of shops 1,2,3, and 4 so as to provide for save allocations of this case.vii.That costs of this application be provided for.

3. Thereafter the landlord filed the further affidavit sworn on the 22/10/2024 and finally the submissions dated 23/4/2025.

4. On his part, the Tenant in response to the landlord’s complaint filed the Replying Affidavit sworn on the 2/10/2024. The notice of preliminary objection dated the 24/4/2025, the submissions and list of authorities of the even date.

5. By the agreement of the parties, it was agreed to hear the application and reference together by way of viva voce evidence and the parties rendered their respective evidence on the 3/4/2025. Mr. Benjamin Geteria Wamugunda testified for the landlord whereas John Nyagah Njiru testified for the Tenant.

6. We have perused the respective parties pleadings and attached evidence by way of documents, considered their viva voce evidence as rendered in court and given due regard to the submissions filed and the case laws cited thereof. From the same, it is our view that this case rises or falls on the question of this court’s jurisdiction to superintend over the issues at hand.

7. In this, we are alive to the hallowed maxim that jurisdiction is everything and that without it a court of law down tools and does no more in the proceedings before it. In this we seek reliance on the Locus Classicus Case of The Owners of Motor Vessel “Lillian S” – vs- Caltex Oil (Kenya) Ltd (1989) KECA 48 (KLR) when Justice J.O. Nyarangi held the following:-“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 of 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”.

8. In this case, there is no dispute that a landlord and Tenant relationship was entered into between Dorothy Mbeere Geteria and John Nyagah Njau on the 17/6/2024. It also emerges from the pleadings that the Applicant and his family were privy to the same.

9. Indeed the main contention by the Applicant was that the agreement was shallow and not in compliance with the requirements of the law of contract act. He asserted that the same favoured the Tenant. In our view however, we are not persuaded by that averment nor the submissions to that effect.

10. Section 2(1) of the Act infact provides for Tenancy agreements that are not in writing and inference on governance of such agreements is required to be drawn from the schedule to the Act. The Section provides that:-“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-c.Is for a period not exceeding five (5) years”.

11. In this case therefore, the Respondent and Dorothy Geteria entered into a lawful Tenancy agreement which can only be challenged by a 3rd party in either the civil or commercial jurisdiction of our courts or in this particular case in the requisite succession proceedings relating to the estate of the late Sarah Njeri Geteria.

12. For the purpose of Cap. 301, this courts jurisdiction is confined to preside over issues that arise between a Tenant and a Landlord. In this case there is no dispute that Dorothy Mbeere Geteria entered into a binding tenancy agreement with the Tenant as the landlady thereof. It is also not in dispute that it is Dorothy who receives rents and other profits in respect of the premises from the Tenant.

13. It therefore follows that his court can only address a dispute between Dorothy and the Respondent which is not the case here. Indeed non of the parties herein made an attempt to have Dorothy enjoined as either a landlord or Interested Party in these proceedings.

14. Section 2(1) of the Act defines a landlord as:-“In relation to a tenancy, means the person for the time being entitled, as between himself and the Tenant, to the rents and profits of the premises payable under the terms of the Tenancy”.

15. In our view from the above dispositions is that the applicant is not a landlord as envisaged by Cap. 301. In the absence of a landlord and Tenant relationship between Benjamin Geteria Wamugunda and John Nyaga Njiru this court has therefore no jurisdiction to preside over this matter.

16. In this we find comfort from the holding in the celebrated case of Pritam -vs- Ratilal and Another (1972) E.A 560 where Madan J. held that:-“Therefore the existence of the relationship of Landlord and Tenant is a pre-requisite to the application of the provisions of the Act. Where such a relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply.The applicability of the Act is a condition precedent to the exercise of jurisdiction by the Tribunal, otherwise the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined under Section 2 of the Act to which the provisions of the Act can apply. Outside it the Tribunal has no jurisdiction”.

17. We would therefore and without much ado strike out the Applicants reference and notice of motion application both dated the 18/7/2024 with costs to the Tenant/Respondent.

18. In the final analysis, the orders that commend to us are the following:-i.That the applicants reference and notice of motion application both dated 18/7/2024 are struck out.ii.The Applicant shall pay the Tenant costs assessed at Kshs.30,000/-.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF JUNE, 2025. HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.Ruling delivered in the presence of M/S Mutua for the Respondent and M/S Gitamo holding brief for Mr. Angelei for the Landlord/Applicant.HON. NDEGWA WAHOME, MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL. BPRT.