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ELCOtherPetition dated 4th September 2023· [2024] KEELC 6685 (KLR)

Gacheru v Lakamshi Khimji & Sons Limited & another (Environment and Land Petition E010 of 2023) [2024] KEELC 6685 (KLR)

Environment and Land Court
24 September 2024
MMM.D. Mwangi
2,788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear a tenant's case against eviction and auction because the Business Premises Rent Tribunal loses power once a tenancy ends.

What this practically means

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Executive summary

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The Petitioner, a tenant of premises M14 and M15 on LR No. 209/523/23 Dubois Road under an unwritten (controlled) tenancy at Kshs. 35,000 monthly rent, alleged that the 1st Respondent landlord shut down her beauty shops without notice and auctioned goods worth Kshs. 5,793,731.98 through the 2nd Respondent auctioneer, in breach of the Auctioneers Rules on distress for rent. She sought declarations that the closure and auction were unlawful, plus damages. The Respondents, in a replying affidavit sworn by Nimish Nalinchandra Shah, objected that the court lacked jurisdiction over a controlled tenancy claim, which belonged to the Business Premises Rent Tribunal under sections 12 and 15 of Cap 301. The court, on its own motion, directed that the jurisdictional issue be determined first. Applying M.V. Lillian and Samuel Kamau Macharia on jurisdiction, and guided by Re Hebtulla Properties and Pritam v Ratilal, M.D. Mwangi, J held that a subsisting landlord-tenant relationship is a condition precedent to the Tribunal's jurisdiction; forcible dispossession is outside the Tribunal's remit; and since the Petitioner had been evicted, her goods auctioned and rent collection ceased, no controlled tenancy remained. The objection was accordingly overruled, the court holding itself properly clothed with jurisdiction to hear the petition, with no orders as to costs at that juncture.

Key legal issues

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01

Whether the Business Premises Rent Tribunal has exclusive jurisdiction over the dispute

Holding

The Tribunal has no jurisdiction because the landlord-tenant relationship ended upon eviction; the ELC is properly clothed with jurisdiction.

Reasoning

Relying on Re Hebtulla Properties and Pritam v Ratilal, the court held that section 12(4) of Cap 301 must be read with the rest of the Act, that forcible dispossession by a landlord is outside the Tribunal's area of jurisdiction, and that a subsisting controlled tenancy is a condition precedent to the Tribunal's jurisdiction. Since the Petitioner was evicted and her goods auctioned, and rent is no longer being collected, no controlled tenancy exists, leaving the dispute for this Court.

p. 6

Legal principles established

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  • Existence of a landlord-tenant relationship is a prerequisite to the Tribunal's jurisdiction under Cap 301; once the tenancy has been terminated, the Act and the Tribunal's jurisdiction cease to apply.
  • A tribunal lacking jurisdiction cannot investigate a complaint of forcible dispossession by a landlord; such matters are for the courts.

Court orders

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  1. 1.The Respondents' objection on jurisdiction is found to have no merit
  2. 2.The Court holds it has jurisdiction to hear and determine the matter and shall proceed to do so
  3. 3.No orders as to costs at this juncture

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 2; Section 5(3); Section 6; Section 9; Section 12(1)(a)-(n); Section 12(4); Section 15(1); Preamble
  • Auctioneers Rules1997

Cases cited (7)

  • Kaka Mohamed v Mohamed Ali
    (2018) eKLR
  • Ola Energy Kenya Limited v Rashid Opondo Otieno t/a Kisumu Breakdown Services Limited
    (2021) eKLR
  • Nandlal Jiuraj Shah & 2 Others v Kingfisher Properties Limited
    (2015) eKLR
  • Motor vessel M.V. Lillian v Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Samuel Kamau Macharia & Another v KCB & 2 Others
    Supreme Court Civil Application No. 2 of 2011
  • Re Hebtulla Properties Ltd.
    [1979] KLR 96; [1976-80] 1 KLR 1195
  • Pritam v Ratilal and Another
    Nairobi HCCC No. 1499 of 1970 [1972] EA 560
Jurisdiction invoked
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301; Article 162(2) jurisdiction of the Environment and Land Court (implied)

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, "Gacheru v Lakamshi Khimji & Sons Limited & another (Environment and Land Petition E010 of 2023) [2024] KEELC 6685 (KLR)", Case Analysis (2024). Petition dated 4th September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6685/eng@2024-09-24

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