Case ID:165143

Samuel Kaptalai Cheptoo & 2 others v David Cullen [2020] eKLR

Case Metadata

Case Number:

Tribunal Case 149 of 2019 (Nakuru)

Parties:

Samuel Kaptalai Cheptoo,Isaac Kiptayor Cheptoo & Mariko Kiserich Limo v David Cullen

Date Delivered:

26 May 2020

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Mbichi Mboroki, Chairman, Business Premises Rent Tribunal

Citation:

Samuel Kaptalai Cheptoo & 2 others v David Cullen [2020] eKLR

Court Division:

Tribunal

County:

Nakuru

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 149 OF 2019 (NAKURU)

SAMUEL KAPTALAI CHEPTOO

ISAAC KIPTAYOR CHEPTOO

MARIKO KISERICH LIMO..................................LANDLORDS

VERSUS

DAVID CULLEN...............................................................TENANT

RULING

The Landlords in the above reference filed a reference under

section 12(4) of Cap 301

and a notice of motion dated

30

th

October 2019

under a certificate of urgency seeking leave to levy distress and record outstanding arrears of rent of

shs 300,000/-

plus an order for vacant possession of the suit premises.

The Tenant/Respondent filed a notice of preliminary objection dated

6

th

November 2019

challenging the jurisdiction of the Tribunal to hear and determine the dispute. The Tenant also filed a replying affidavit sworn by David Cullen on

27

th

June 2020.

The Advocates of the parties have made oral submissions which are on record. The dispute between the parties is more on issue of law than facts.

The following are the admitted facts.

1. The Tenant in the reference first took possession of the suit premises pursuant to the lease agreement dated

2

nd

January 2009

between him and Samuel Kiptalai Cheptoo. The suit premises is described as a 2 bedroom house at Kambi ya Samaki.

2. Upon expiry of the first lease agreement, the Tenant entered into another lease agreement dated

1

st

January 2014

with Samuel Kaptalai Cheptoo, Isaac Kiyator Cheptoo and Mariko Kiserich Kiptoo for another period of 5 years at the monthly rate of

shs 10,000/-.

The lease expired on

31

st

December 2018

and the parties have not entered into another lease agreement.

3. On

4

th

June 2016

the Tenant entered into a sale agreement with Samuel Cheptoo and Isaac Cheptoo for the sale of the suit premises for a sum of

Kshs 100,000.

The Tenant paid the renters

shs 15,000/-.

4. The sale of the suit premises was not completed.

5. The Tenant continued to be in occupation of the suit premises.

The above facts are not in dispute. The Tribunal upon consideration of all the pleadings in this matter and upon consideration of the oral submissions of the advocates of the parties makes the following findings;

1. The Tribunal has no jurisdiction to hear and determine the dispute arising out of the sale agreement dated

4

th

June 2016.

2. The Tenant did not cease to be a Tenant of the Landlord by virtue of the sale agreement dated

4

th

June 2016.

3. The sale agreement dated 4

th

June did not refer to and/or invalidate the lease agreement dated

1

st

January 2014.

In any event, the sale agreement was not completed and the Tenant did not and has not become the owner of the suit premises.

4. The relationship between the Tenant and that of the Landlord herein is that of Landlord and Tenant within the meaning of

section 2 Cap 301.

5. Upon expiry of the lease on

31

st

December 2018

the Tenant became a periodic tenant on the same monthly rent of

shs 10,000/-.

6. There is overwhelming evidence on record to show that the use of the suit premises is that of a business and/or hotel as defined under

Cap 301.

7. The Landlord has not served the Tenant with a notice to terminate the tenancy under

section 4(2) of Cap 301

and they are not entitled to an order for vacant possession of the suit premises.

8. The Tenant has not demonstrated to the Tribunal that he has paid rent from

2017

.

All in all the Tribunal is satisfied under the Tenant’s preliminary objection has no merits. The Tribunal allows the Landlord’s application dated

30

th

October 2019

and makes the following orders;

1.

Prayer 2 and 4

of the notice of motion dated

30

th

October 2019

is hereby granted.

2. The Tenant shall pay the costs of the Auctioneer.

3. The order issued above shall be stayed for

30 days

from the date of delivery of the ruling to enable the Tenant to comply.

4. The Tenant shall pay the Landlord costs of the application and other disbursements.

5. Costs shall be agreed or taxed by the Tribunal.

Ruling dated and delivered this

26

th

day of

May 2020

in the presence of

Mr Oloo

holding brief for

Wekhomba

for the

Tenant.

Advocate for the

Landlord

absent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL