Warui v Kanini & another [2022] KEBPRT 795 (KLR)

Warui v Kanini & another (Tribunal Case E652 of 2021) [2022] KEBPRT 795 (KLR) (Civ) (28 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 795 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E652 of 2021

Gakuhi Chege, Vice Chair

October 28, 2022

Between

Isaac Gichohi Warui

Tenant

and

Samson Maina Kanini

Landlord

and

Icon Auctioneers

Auctioneer

Ruling

1. The tenant moved this tribunal by a plaint dated November 4, 2021 seeking for:-i.A permanent injunction against the respondents from attaching and selling his belongings.ii.A permanent injunction against the 1st and 2nd respondents from evicting or otherwise stopping him from lawfully conducting his business in the said business premises.iii.In the alternative to prayers (i) and (ii), the landlord be ordered to pay the tenant the sum of Kshs 2,500,000/- being the amount paid for rent in advance together with damages for unlawful termination of tenancy and interest at court rates.iv.Costs of this suit.v.Any other relief that this honourable tribunal may deem fit to grant.

2. The parties herein entered into a tenancy agreement for a business premises on LR NO 609/6702, Magomano House, Tom Mboya street, Nairobi on July 4, 2018. The tenant deposes that he made advance deposit of Kshs 2,400,000/- and monthly rent was agreed at Kshs 80,000/-. The deposit was made at Equity Bank account no. xxxxxxxxxxxxxx i n o the landlord and thereafter continued to pay rent to the same account.

3. The tenant contends that owing to covid -19 pandemic, the landlord agreed to reduce rent to Kshs 50,000/- until the economy recovered. As such, he paid the reduced rent until August 2021 when the landlord communicated that the rent payable would resume at Kshs 80,000/- but the landlord in s shocking turn of events demanded payment of Kshs 600,000/- being rent arrears created by the waiver between March 2020 and August 2021. The said amount was not payable in future according to the tenant.

4. The landlord instructed Icon auctioneers to proclaim the tenant’s goods on account of the disputed rent arrears. It is the tenant’s case that the said proclamation is unlawful.

5. The tenant simultaneously filed a motion dated November 4, 2022 seeking interim orders in terms of the plaint. The same were granted on November 5, 2021 pending hearing inter-partes.

6. Among the documents annexed to the supporting affidavit of the tenant is the deposit slip of Kshs 2,500,000/- marked ‘IGW1’, bundle of rent payment receipts marked ‘IGW2’ and proclamation notice by the 2nd respondent marked ‘IGW3’.

7. Through a motion dated December 7, 2021, the landlord moved this tribunal seeking that the tenant be ordered to continue paying rent including rent arrears for November and December 2021 and in default execution in form of distress for rent do issue.

8. It is the landlord’s case that the tenant refused to pay rent for the month of November and December 2021 despite the court having not ordered suspension of rent through its orders of November 5, 2021.

9. The landlord also filed a replying affidavit sworn on November 26, 2021 in which it is deposed that he was a director of Lodajots Enterprises Limited together with Loise Njeri Ndungu.

10. The applicant entered into a lease agreement dated October 30, 2018 over the suit premises for a period of 5 years 3 months commencing from August 1, 2018 with the said company in terms of annexture ‘SMK1’. The agreement has no termination clause and as such the tenancy is not controlled and the tribunal has no jurisdiction.

11. On April 21, 2021, the tenant and the 1st respondent entered into a supplementary agreement in which the tenant acknowledged being in arrears of Kshs 543,000/- and agreed on how the amount would be settled in installments as per annexure marked ‘SMK2’.

12. The tenant is accused of paying unilateral rent of Kshs 50,000/- per month instead of the contractual rent of Kshs 80,000/- from March 2020 to July 2021. In a letter marked ‘SMK3’, the tenant is said to have acknowledged that he was in arrears of Kshs 30,000/- per month for the period April 2020-April 2021 which shows that there was no oral agreement to reduce rent to Kshs 50,000/-.

13. According to the landlord, the amount of Kshs 2. 5 million paid to him was not connected to the current lease as it was for a debt which the tenant owed the former for several years.

14. The landlord admits sending auctioneers as the tenant owed rent of Kshs 730,000/- as at November 26, 2021 as per the rent schedule marked ‘SMK4’.

15. The matter was directed to be canvassed by way of written submissions and both parties complied.

16. The issues for determination herein based on the pleadings are:-a.Whether this tribunal has jurisdiction to hear and determine the suit.b.Whether the tenant is entitled to the reliefs sought in the suit and application dated November 4, 2021. c.Whether the landlord is entitled to the reliefs sought in the application dated December 7, 2021. d.Who is liable to pay costs?

17. The jurisdiction of this tribunal is conferred by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act 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 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”

18. The landlord through his replying affidavit sworn on November 26, 2021 attached a lease agreement dated October 30, 2018 between Lodajots Enterprises Ltd and Isaac Gichohi Warui (tenant) in respect of LR NO 209/670/2 shop no 1, Ground floor, Magomano Trading House which is the suit premises herein. The lease is for 5 years 3 months from August 1, 2018 as per clause 4 of annexure ‘SMK1’.

19. The landlord at paragraph 5 of his replying affidavit clearly raises the question of the Tribunal’s jurisdiction stating that the lease being for 5 years 3 months with no termination clause is not a controlled tenancy. As such this tribunal has no jurisdiction.

20. The tenant did not respond to the issue of jurisdiction and both parties in their submissions appear to have ignored the said critical issue which ought to have been raised and determined at the threshold stage.

21. In the case of Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd (1989) eKLR at page 8-9, the court of appeal had the following to state on the issue of jurisdiction:-“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”.

22. Similarly, in the case of Phoenix of EA Assurance Company Limited v SM Thiga t/a Newspaper Service (2019) eKLR at paragraph 2, the court of appeal had the following to state:-“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex-debito justitiae”.

23. I have looked at the tenancy agreement exhibited herein and I agree with the landlord that this tribunal has no jurisdiction to deal with the instant dispute given that the lease is for 5 years 3 months and the same has no termination clause save for breach of covenant.

24. I also note that the lease was entered into between the tenant and LodaJots Enterprises Ltd in which the 1st respondent is a director. As such, the proper landlord is the said company which has a different identity from its directors with capacity of suing and being sued. In absence of a landlord/tenant relationship between the tenant and the 1st respondent, this tribunal would have no jurisdiction in line with the decision in the case of Pritam v Ratilal & Another(1972) EA 560 at page 562 where it was held as follows:-“Therefore, the existence of the relationship of landlord and tenant is a prerequisite 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 in section 2 to which the provisions of the Act can be made to apply. Outside it, the tribunal has no jurisdiction”.

25. I find and hold that parties cannot by consent or acquiescence grant jurisdiction to a court or tribunal where there is none and I am entitled to make a finding on the issue inspite of what appears to be a calculated move by both parties to let it pass. In absence of jurisdiction I am not entitled to make any further step in this matter which is a candidate for striking out.

26. In view of the foregoing, the applications dated November 4, 2021 and December 7, 2021 are hereby struck out.

27. Costs of any suit before the tribunal is in the court’s discretion under section 12(1) (k) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the respondents costs of the suit.

28. In conclusion, the final orders which commend to me in this case are:-a.This tribunal has no jurisdiction to hear and determine the suit and the same is hereby struck out with costs.b.The interim orders given herein on November 5, 2021 are hereby discharged/set aside.c.The respondent’s costs are assessed at Kshs 30,000/- all inclusive.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 28TH DAY OF OCTOBER, 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Mundia Mwangi for TenantNo appearance for the Landlord.