Masia & 2 others v Mwangi & another; Kimani & another (Interested Parties) (Environment & Land Case E080 of 2024) [2024] KEELC 7250 (KLR)

2. Subsequently, they filed Tribunal Case No. E595 of 2023 in which the 1st Defendant was temporarily restrained from altering the terms of the tenancy and in its ruling of 5.12.2023, the Tribunal directed that the Plaintifis sign the ofier letter dated 29.5.2023 on or before 1.1.2024 and they were subsequently served with proclamation notices from auctioneers for alleged rent arrears. 3. He contends that the Plaintifis have no rent arrears and that they seek the indulgence of this court to determine when rent increment took efiect. 4. The court heard the Plaintifis’ application ex parte on 1.3.2024 and directed the parties to appear on 15.4.2024 for directions. Subsequently, the Plaintifis filed the Notice of motion application dated 1.3.2024 seeking a review of this court’s directions of 1.3.2024 and an order to restrain the 1st Defendant from levying distress on the basis that they were no longer within the jurisdiction of the Business Premises rent tribunal by virtue of the letter of ofier dated 29.5.2023. 5. The said application was heard ex pate on 5.3.2024, following which the court directed that the prevailing status quo be maintained until 15.4.2024. 6. The Plaintifis filed yet another application dated 14.6.2024 seeking to restrain the 1st Interested party from interfering with their quiet enjoyment of the suit premises and seeking to be allowed to deposit rent in court pending hearing and determination of the suit. 7. In response thereof, the 1st Defendant filed a Notice of Preliminary Objection dated 20.5.2024 contending that this court has no jurisdiction to hear the matter as the tenancy between the parties falls within the jurisdiction of the Landlord and Tenants (Shops, Hotels and catering Establishment Act. 8. The Preliminary Objection was canvassed vide written submissions. 9. The Defendant’s submissions are dated 19.8.2024 where it is contended that the unsigned letters of ofier dated 29.5.2023 have not met the mandatory statutory requirement of both Section 3 (3) of the law of contract Act and Section 44 of the Land Registration Act, thus the said letters of ofier are a nullity ab initio and cannot sustain this suit. To this end, the cases of Silverbird Kenya Limited v Junction Limited & 3 Others [2013] eKLR, Kangatta properties co ltd v charity Njeri t/a Winacom Crossline supplies & 4 Others [2014] eKLR as well as the case of Leo Investment ltd v Estuarine Estate Ltd [2017eKLR are relied upon. 10. It also submitted that the letters of ofier herein are unenforceable and cannot be relied upon to prove any tenancy relationship with the parties and as a result, the Plaintifis and the 1st Defendant have a controlled tenancy. 11. It is argued that Section 12 of the Landlords and Tenant (Shops, Hotels and Establishments) Act vests the Tribunal with jurisdiction to deal with matters arising from a controlled tenancy such as the one which the Plaintifis want this court to determine while section 15 of the same Act vests this court with jurisdiction to hear appeals from decisions of the tribunal. 12. It is submitted that since there is a clear procedure stipulated by legislation, the court would be overstepping its mandate if it determined the suit. To this end, the case of Speaker of the National Assembly v Karume [2008] 1KLR, Migiro v Paintmart and Allied Building Equipment (K) Limited (Civil Suit E448 of 2021) [2023] KEELC 18523 (KLR) (6 JULY 2023) (Ruling) as well as the case of Ola Energy Kenya Limited v Rashid Opondo Otieno t/a Kisumu Breakdown Services Limited [2021] eKLR are cited. 13. The Plaintifi’s submissions are dated 2.8.2024 where they contend that the suit does not fall within the jurisdiction of the Business Premises Rent Tribunal since the tenancy has been reduced into https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7250/eng@2024-10-30 2

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writing by the letter of ofier dated 29.9.2023. It is pointed out that the said letter of ofier provides that the lease shall be for a period of 6 years commencing 1.6.2023. Thus it altered the definition of a controlled tenancy as provided under Section 2 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act. 14. The Plaintifis argue that the 1st Defendant’s Preliminary Objection does not raise a pure point of law as there are facts which ought to be ascertained; being the question whether the disputed ofier letters altered rent payable from ksh.16, 000/= to ksh.20,000/=. 15. The Plaintifis rely on the case of KCB Ltd v Popatlal Madhanji Brothers Ltd & Another [2019] eKLR, Ram International Limited v Maasai Mara University [2021] eKLR and Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR among others. 16. I have considered all the issues raised herein. It is not in dispute that the Plaintifis have been the 1st Defendant’s tenants for a considerable period of time. When a dispute arose between them, the Plaintifis filed Tribunal Case No. E595 of 2023 in which the Tribunal directed them to sign the ofier letters dated 29.5.2023 on or before 1.1. 2024. On 15.4.2024, this court was informed that the BPRT case was finalized. 17. The 1st Defendant now contends that this court has no jurisdiction to determine the issues raised in the suit and in the Notice of Motion dated 29.2.2024 since the BPRT is the one clothed with jurisdiction as the matter concerns a controlled tenancy. 18. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya defines a controlled tenancy to mean “a 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; or (iii) Relates to premises of a class specified under subsection (2) of this section: Provided that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy; 19. It follows that a court does not have jurisdiction to deal with matters falling under the abovementioned provisions of law. See - Ola Energy Kenya Limited v Rashid Opondo Otieno t/a Kisumu Breakdown Services Limited [2021] eKLR. 20. In the Tribunal Case No. E595 of 2023, the Plaintifis were directed to sign ofier letters dated 29.5.2023 on or before 1.1.2024. In essence, the said letters constitute tenancy agreements over the suit premises whose term as contained therein is 6 years with efiect from 1.6.2023 to 31.5.2029. The tribunal ruling has not been challenged by way of an appeal. 21. The dispute herein is therefore a question of reconciling accounts from the date the rent increment took efiect and is well within this court’s jurisdiction since the ofier letters dated 29.5.2023 removed the dispute from the purview of the Tribunal. In the circumstances, the 1st Defendant’s Preliminary Objection dated 29.2.2024 is not merited and is hereby dismissed. Seeing that the dispute is far from over as even the various applications of the plaintifis have not been prosecuted, I direct that each party https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7250/eng@2024-10-30 3

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shall bear their own costs of the Preliminary objection. The parties are also encouraged to explore alternative dispute resolution mechanisms to reconcile the accounts. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30th DAY OF OCTOBER, 2024 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:Odero for Plaintifi Kinuthia for 1st Defendant Court assistant: Vena https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7250/eng@2024-10-30 4

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