Charles Owuor Rapul Tebo T/A Tebotech Training Institute Ltd v Swafaa Homes,Work-No-Words Auctioneers & Zain Taha 2 others (Tribunal Case 313 of 2019) [2021] KEBPRT 429 (KLR) (18 June 2021) (Ruling)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7^TH & 8^TH FLOOR

TRIBUNAL CASE NO. 313  OF 2019  (MOMBASA)

CHARLES OWUOR RAPUL TEBO

T/A TEBOTECH TRAINING INSTITUTE LTD.………………..TENANT/APPLICANT

VERSUS

SWAFAA HOMES…………………….………......................AGENT/1^ST RESPONDENT

WORK-NO-WORDS AUCTIONEERS…………...AUCTIONEER/2^ND RESPONDENT

ZAIN TAHA……………………………………….......……………….3^RD RESPONDENT

RULING

1. Through an application dated 29^th March 2021, the Tenant is seeking in material part for an order allowing him to be depositing his monthly rents from March 2021 in the Tribunal to avoid accumulation pending appointment of an administrator for the estate of SHARIFF TAHA (DECEASED)/  LANDLORD  who died in October 2020.

2. He further seeks for restraining orders against the Respondents from interfering with his quiet and peaceful occupation of the suit premises pending hearing and determination of the case.

3. The application is supported by the Applicant’s affidavit sworn on 29^th March 2021 and the grounds on the face of the application.

4. The Tenant runs an institute of learning under the name of TEBOTECK TRAINING INSTITUTE in the suit premises pursuant to a lease entered with the deceased Landlord.  The lease is marked CORT-1.

5. The  said lease shows that the term thereof is for a period of 5 years 3 months.

6. Although the Respondents in their written submissions filed in court on 5^th May 2021 alludes to a replying affidavit in paragraph 4 as having been filed, the court record has no such record.

7. Be that as it may, what has caught my attention is the term of the lease which is stipulated to be 5 years 3 months.

8. Under section 2 of Cap. 301, Laws of Kenya, a controlled tenancy means a tenancy of a shop, hotel or catering establishment which is for a period not exceeding five years or contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof.

9. I have examined the lease document and the same does not contain any termination clause and is for a period of more than 5 years.

10. The preamble to Cap. 301 defines the Act as follows: -

“An Act of Parliament to make provision with respect to certain premises for the protection of Tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto”.

11. In the case of OWNERS AND MASTERS OF THE MOTOR VESSEL “JOCY” –VS- OWNERS AND MASTERS OF THE MOTOR TUGS “BARBARA” and STEVE “B” (2008) E.A 367  the court of Appeal expressed itself as follows:-

“The question of jurisdiction is a threshold issue and must be determined by a Judge at the threshold stage, using such evidence as may be placed before him by the parties.   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 and without it, a court has no power to make one more step, where court has no jurisdiction there would be no basis for continuation of proceedings pending other evidence.   A court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court.   It is immaterial whether the evidence is scanty or limited”.

12. Having observed as above, I entertain no doubts that this court has no jurisdiction to deal with the matter filed by the Tenant herein.

13. In the premises, I proceed to dismiss the application and to strike out the Reference in its entirely with costs to the Respondents.

14. The said costs are assessed at Kshs.10,000/- against the Tenant.

15. The orders earlier issued are also vacated for avoidance of doubt.

It is so ordered.

DATED, SIGNED & DELIVERING THIS……18^TH …..DAY OF………JUNE…………………2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mr. Oyas for the Obonyo for Applicants

No appearance for the Respondent