Mathews Gitonga Kihara v Peter Geche Karanja [2021] eKLR

Mathews Gitonga Kihara v Peter Geche Karanja [2021] eKLR

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E173  OF 2021  (NAIROBI)

MATHEWS GITONGA KIHARA....................................APPLICANT

VERSUS

PETER GECHE KARANJA.........................................RESPONDENT

RULING

1.  Before me is a preliminary objection dated 29th June 2021 challenging the jurisdiction of the Tribunal in hearing and determining the instant reference.

2.  It is the Landlord’s case that the relationship between him and the tenant does not amount to a controlled tenancy as the tenancy agreement is for 5 months.

3.  The Respondent acknowledges that this Tribunal has jurisdiction to determine whether or not any tenancy is controlled under section 12 of Cap 301, Laws of Kenya.  He submits that if it is found that the same is not controlled, then the Tribunal must down tools in line with the decisions in the case of Republic – vs- Business Premises Tribunal and Another ex-parte Albert Kigera Karume (2015) eKLR and the Locus Classicus Case of Owners of Motor Vessel ‘Joey’ -vs- Masters of the Motor Vessel Tugs “Barbara” and Steve B’ (2008) IEA 367.

4.  The Respondent concludes that since the tenancy is for 5 years 5 months, it is not within the ambit of Section 2(b) (1) of Cap. 301, Laws of Kenya and the Tribunal has no jurisdiction.

5.  On the other hand, the tenant submits that the tenancy is controlled in that it contains a Clause to the following effect:-

“…..the landlord or tenant may terminate the agreement before expiry of the lease by giving a prior 6 months notice in writing of the intention to do so……..”.

6.  The tenant cites the decision in the case of Mohamed Noor Abdullahi – vs- al-Sawaw Mohamed Abdulqader & Another (2021) eKLR where it was held as follows:

“The tenancy between the tenant and the landlord is a controlled tenancy in view of the fact that the tenancy provides for a termination of the tenancy other than for breach of covenant within four years from the date of commencement thereof”.

7.  On the second ground that the application is not supported by a plaint and the orders sought are baseless bad in law and an abuse of due process, the tenant submits that section 6 of Cap. 301 only requires a party served with a termination notice to file a reference and does not mention filing of a plaint.

8.  I have looked at the tenancy agreement marked “MGK 1” and Clause 3(6) thereof provides as follows:-

“in the alternative and without prejudice to paragraph 3 (a) herein above, either the Landlord or the tenant may terminate the agreement before expiry of the lease by giving a prior six (6) months notice in writing of the intention to do so……………”

9.  The foregoing provision of the tenancy agreement makes the tenancy controlled by dint of section 2(1)(b)(ii) of Cap. 301 as the termination clause  is not predicted upon breach of covenant by either party.

10. As regards necessity to file a plaint, I only need to cite section 6(1) of Cap. 301, which provides as follows:-

“A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice may before the date upon which such notice is to take effect refer the matter to a Tribunal whereupon such notice shall be of no effect until and subject to the determination of the reference by the Tribunal”.

11. Regulation 5 of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides for filing of Forms B or C by the tenant or landlord respectively by way of reference under section 6 of the Act.  There is no requirement to file a plaint.

12. From the foregoing analysis, the preliminary objection by the Landlord/Respondent has no merit and is dismissed with costs to the tenant.

13. The application dated 4th June 2021 shall proceed to hearing on the merits.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF DECEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of :

WAMBUGU FOR TENANT/APPLICANT

CHEBET FOR THE LANDLORD

FURTHER ORDER: MENTION ON 20/1/2022 TO TAKE DIRECTIONS ON THE PENDING APPLICATION AND ANY NEW APPLICATION BY THE TENANT.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

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