Automated Summary
Key Facts
The case involves a lease agreement between Landlord David Maina Karuma and Tenant Sophia Ngina Wamunyu for shop D on the ground floor of a property in Ngoingwa Thika Sub-county. The lease began on 1st September 2018 for five years and three months. The Tenant filed a complaint under s. 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act on 13th September 2023, leading the Landlord to raise a preliminary objection. The objection argued the Tribunal lacked jurisdiction due to the lease’s fixed term exceeding five years. The Tribunal dismissed the objection, ruling that the tenancy qualifies as 'controlled' under the Act because it includes a termination clause allowing either party to end the lease with two months' notice, regardless of breach of covenant. The case was set for directions on 2nd January 2024, with costs pending the reference outcome.
Issues
The key issue was whether the Business Premises Rent Tribunal had jurisdiction to hear the matter under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, given the tenancy agreement's fixed term and termination clauses.
Holdings
- The Tribunal has jurisdiction over the matter because the tenancy is a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, specifically due to the provision allowing termination by either party with two months' notice within the five-year lease term.
- The Landlord's Preliminary Objection is hereby dismissed. The court determined that the tenancy falls under the jurisdiction of the Business Premises Rent Tribunal as it constitutes a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.
Remedies
- Mention on 2nd January 2024 for directions with regard to the Notice of Motion dated 13th September 2023.
- Costs shall abide the outcome of the Reference.
- The Landlord's Preliminary Objection is hereby dismissed.
Legal Principles
The Business Premises Rent Tribunal applied the definition of a 'controlled tenancy' under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act to determine jurisdiction. A tenancy was classified as controlled if it included a provision for termination without breach of covenant within five years, even if the lease term exceeded five years (e.g., five years and three months). This established the Tribunal's authority to adjudicate the dispute.
Precedent Name
Owners of the Motor Vessel 'Lillian' (s) versus Caltex Oil (Kenya) Ltd
Cited Statute
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301
Judge Name
HON P. KITUR
Passage Text
- Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion
- From the foregoing, the Tenancy herein can properly be termed as a controlled tenancy, whose effect thus is that the Tribunal has jurisdiction over this matter.
- The above clause is a clear provision for termination otherwise than for breach of covenant at any time during the pendency of the Lease.