Case ID:165257

Airworks Kenya Limited v Kenya Aerospace Limited [2020] eKLR

Case Metadata

Case Number:

Tribunal Case 84 of 2020 (Nairobi)

Parties:

Airworks Kenya Limited v Kenya Aerospace Limited

Date Delivered:

26 May 2020

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Mbichi Mboroki (Chairman)

Citation:

Airworks Kenya Limited v Kenya Aerospace Limited [2020] eKLR

Advocates:

Tom Kabau for the Landlord/Applicant

Court Division:

Civil

Parties Profile:

Private v Private

County:

Nairobi

Advocates:

Tom Kabau for the Landlord/Applicant

Case Outcome:

Application allowed

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 84 OF 2020 (NAIROBI)

AIRWORKS KENYA LIMITED.........................................................TENANT

VERSUS

KENYA AEROSPACE LIMITED..................................................LANDLORD

RULING

The Tenant/Applicant filed a reference under

section 12(4) of Cap 301

and a notice of motion dated

22

nd

January 2020

seeking to restrain the Landlord and its agent from interfering with the Tenant’s open and quiet enjoyment of the suit premises. The Tribunal upon perusal of all the pleadings issued interim restraining orders on

23

rd

January 2020.

The Advocate for the Landlord/Respondent filed a notice of preliminary objection on

7

th

January 2020

stating that the Tribunal did not have jurisdiction to hear and determine the dispute as the parties had entered a lease agreement for 6 years.

The Landlord/Respondent also on

7

th

January 2020

filed a notice of motion under a certificate of urgency seeking to set aside the orders of the Tribunal issued on

23

rd

January 2020

. The Tenant/Applicant on

27

th

February 2020

filed a replying affidavit to the Landlord’s application dated

7

th

January 2020

. The replying affidavit had been sworn by Eric Mutinda Kivindu.

The core issue for determination in this matter is whether the Tribunal has jurisdiction to hear and determine this dispute. The issue of jurisdiction is an issue of pure law which must be based on admitted facts.

The Tribunal has read in details all the submissions of the advocate of the parties and the list of authorities cited by the parties. The law in respect of a preliminary objection is now considered settled. There is a list of authorities starting from the case of

Mukisa Biscuit Case 1969 EA (696).

The Tribunal has no intention of reviewing all the authorities in this ruling. The Tribunal upon consideration of all the pleadings in this matter makes the following findings;

1. The Applicant/Tenant did not disclose to the Tribunal the existence of the lease agreement contrary to

section 13 of Cap 301.

2. The Tenant/Applicant has not disputed execution of the lease agreement dated

12

th

March 2018, EXHIBIT MW 2

in the affidavit sworn on

4

th

February 2020

by Morrison Wayaya.

3. The lease dated

12

th

March 2018

clause 1.1.14 “term” means six (6) years from the commencement of the lease.

4. The lease executed by the parties did not have a termination clause for reasons other than breach of the terms of the lease which would have made it a controlled tenancy within the meaning of

section 2(1) (b) (ii) of Cap 301.

5. The Tribunal has no doubt in its mind that the tenancy created by the lease dated

12

th

March 2018

is not a controlled tenancy within the meaning of

section 2 of Cap 301.

6. Eric Mutinda Kivindu who swore the replying affidavit filed on

27

th

February 2020

is a signatory to the lease agreement dated

12

th

March 2018.

7. That any issues the Tenant may have with the lease dated 12

th

March 2018 can only be raised with a court which has jurisdiction to deal with the matter and not the Tribunal.

8. The license agreement between TEPE Investment Ltd and the Tenant herein is not part of the dispute before the Tribunal.

All in all the Tribunal is satisfied that the Tenant obtained the orders from the Tribunal by concealment of material facts. The Tribunal does not have jurisdiction to hear and determine the dispute.

The Tribunal makes the following orders;

1. The Landlord’s application dated

4

th

February 2020

is allowed and the Tribunal makes the following specific orders;

2. A. the orders issued by the Tribunal on

23

rd

January 2020

are hereby set aside.

3. The Tenant’s application dated

22

nd

January 2020

and the reference of the same date are hereby struck out as incompetent for want of jurisdiction as the lease dated

12

th

March 2018

did not create a controlled tenancy within the meaning of

section 2 of Cap 301.

4. The Tenant/Applicant shall pay the Landlord/Respondent all inclusive costs assessed at

shs 100,000/-.

5. Costs shall be paid within 30 days from the date of delivery of this ruling in default execution shall issue under

section 14(1) of Cap 301.

Ruling dated and delivered this 26

th

day of May 2020

in the presence of

Tom Kabau

for the

Landlord/Applicant

.

Advocate

for the

Tenant

absent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL