Case ID:180462

M/S at Consulting Limited v Imara Enterprises Limited & another [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 183 of 2021 (Nairobi)

Parties:

M/S at Consulting Limited v Imara Enterprises Limited & Icon Auctioneers

Date Delivered:

22 Jul 2021

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Hon. Cyprian Mugambi Nguthari Chairman

Citation:

M/S at Consulting Limited v Imara Enterprises Limited & another [2021] eKLR

Court Division:

Tribunal

County:

Nairobi

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 183 OF 2021 (NAIROBI)

M/S AT CONSULTING LIMITED...............................TENANT/APPLICANT

VERSUS

IMARA ENTERPRISES LIMITED.............LANDLORD/1

ST

RESPONDENT

ICON AUCTIONEERS….............................LANDLORD/2

ND

RESPONDENT

RULING

The Respondents have raised a preliminary objection seeking the dismissal of this suit in

limine

on the following grounds inter

alia

;

That this honourable Tribunal has no jurisdiction to hear or determine the Applicant’s application dated

22

nd

February 2021

and the reference thereto for the following reasons;

1. There exists a written agreement dated

19

th

March 2015

and accepted by the Applicant setting out all the terms of the tenancy.

2. The tenancy agreement is for a term of ten (10) years.

3. The agreement does not contain a provision for termination within five years from the commencement of the contract.

4. The tenancy is therefore not a controlled tenancy.

5. That the Tribunal has no powers or jurisdiction to issue the orders sought in the Tenant’s application.

6. That the application is an abuse of the procedure and process of the Tribunal.

The main contention in the preliminary objection is as to jurisdiction, or rather the lack of it on the part of the Tribunal to deal with the Tenant’s reference. The Tenant’s reference basically revolves around the issuance of an invalid notice of termination of the tenancy and an alleged illegal proclamation by the 2

nd

Respondent.

The issue for me to determine at this stage is whether the tenancy between the Applicant and the 1

st

Respondent is a controlled tenancy or not.

Section 2(1) of Cap 301

describes a controlled tenancy of a shop, hotel or catering establishment;

a. Which has not been reduced into writing or

b. Which has been reduced into writing and which;

I. Is for a period not exceeding five years or

II. Contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof

III. ….

I have seen exhibit DKN – I in the 1

st

Respondent’s replying affidavit. The same is revised offer for business space at Thika Bazaar,

plot No. LR No. 4953/1573 Thika Municipality

. The terms of the offer are communicated in that letter of offer. The lease commencement date is indicated as the

1

st

May 2015

and the lease period is expressed to be ten years. The Tenant’s/Applicant’s affidavit in support of his application at paragraph 2 provides as follows;

2. “That sometimes on

1

st

May 2015

the Landlord/1

st

Respondent herein, being the owner of the premises situated on the parcel of land known as

LR No. 4953/1573

entered into a lease agreement with the Tenant/Applicant herein for a ten-year lease.”

I note that paragraph 2 above is in consonance with the revised offer letter earlier referred to in this ruling. I therefore am of the view that that letter of offer contained the terms of agreement between the parties herein, the same is in writing. The Tenant has not controverted those terms.

The Respondent’s letter of offer containing the terms between the parties does not contain a clause for termination otherwise than for breach of covenant within five years from

1

st

May 2015.

It is for ten years.

In the circumstances, I am persuaded by the submissions filed on behalf of the Respondents and the authorities cited therein, that the Tribunal does not have jurisdiction to entertain this dispute. I do find that the tenancy between the Applicant and the 1

st

Respondent is not a controlled one. The notice of preliminary objection dated

17

th

March 2021

is allowed with costs

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling

dated and delivered virtually by

Hon. Cyprian Mugambi Nguthari

this

22

nd

day of

July 2021

in the absence of the parties.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL