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ELCDismissedKisii CMCC ELC No. 667 of 2019 (Appeal)· [2022] KEELC 3332 (KLR)

Dhingira Ramesh Chander t/a Himani Traders v Tailor (Environment and Land Appeal 4 of 2020) [2022] KEELC 3332 (KLR)

Environment and Land Court
27 July 2022
JOJ. M. Onyango
1,606 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A lease with a termination clause usable within five years is a controlled tenancy in Kenya, so rent disputes go to the BPRT, not the courts.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisii from a ruling of Hon. S.N. Makila, Principal Magistrate, in Kisii CMCC ELC No. 667 of 2019, striking out the appellant's suit on a preliminary objection for want of jurisdiction. The appellant had sued the respondent landlord for injunction and a declaration that a termination notice dated August 18, 2019 was null and void, alleging premature termination of a five-year lease of office space on parcel Kisii Town/Block/III/276. The trial magistrate held the dispute belonged to the Business Premises Rent Tribunal under the Business Premises Rent Tribunal Act. On appeal, the appellant argued the written lease of five years and one month was not a controlled tenancy under section 2 of Cap 301 and that the parties had by agreement ousted the BPRT's jurisdiction. The respondent maintained the tenancy was controlled and that jurisdiction cannot be conferred by agreement, relying on Samuel Kamau Macharia v Kenya Commercial Bank and Adero v Ulinzi Sacco Society. Onyango J held that although the appellant focused on section 2(1)(b)(i), the lease contained a blanket termination clause permitting termination at any time on one month's notice within the term, bringing it within section 2(1)(b)(ii) as a controlled tenancy. Jurisdiction therefore vested in the BPRT and the trial court correctly declined jurisdiction. The appeal was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Whether the written tenancy of 5 years and one month with a one-month termination clause was a controlled tenancy under section 2 of Cap 301

Holding

It was a controlled tenancy under section 2(1)(b)(ii) because the termination clause could be invoked at any time within the five-year term, ousting the court's jurisdiction

Reasoning

The appellant relied only on section 2(1)(b)(i) (term not exceeding five years), ignoring section 2(1)(b)(ii). Clause 3 of the special conditions allowed either party to terminate on one calendar month's notice before expiry of the lease. Because termination was possible within five years otherwise than for breach of covenant, the tenancy was controlled and jurisdiction vested in the Business Premises Rent Tribunal, not the court.

p. 4
02

Whether parties can vest jurisdiction in the court by terms of their lease agreement

Holding

No; jurisdiction cannot be conferred by agreement or consent

Reasoning

Relying on Samuel Kamau Macharia v Kenya Commercial Bank and Adero v Ulinzi Sacco Society as submitted by the respondent, jurisdiction flows from the constitution or legislation; parties cannot by special conditions in their agreement confer jurisdiction on any court or tribunal. The alleged ouster of the BPRT by the lease terms therefore could not vest the dispute in the court.

p. 3

Legal principles established

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  • A tenancy which contains a provision for termination otherwise than for breach of covenant within five years of commencement is a controlled tenancy whose disputes lie in the Business Premises Rent Tribunal, and the court lacks jurisdiction over them
  • Parties cannot by agreement or consent confer jurisdiction on a court; jurisdiction flows from the constitution or legislation

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 2(1)(b)(i) and (ii); section 12
  • Business Premises Rent Tribunal Actsection 2

Cases cited (2)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others
    (2012) eKLR
  • Adero & another v Ulinzi Sacco Society Ltd
    (2002) 1 KLR 577
On appeal from
Chief Magistrate's Court, Kisii
Kisii CMCC ELC No. 667 of 2019
Jurisdiction invoked
First appeal on jurisdiction from the magistrates' court; dispute over ouster by section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) in favour of the Business Premises Rent Tribunal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dhingira Ramesh Chander t/a Himani Traders v Tailor (Environment and Land Appeal 4 of 2020) [2022] KEELC 3332 (KLR)", Case Analysis (2022). Kisii CMCC ELC No. 667 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3332/eng@2022-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.