Whether there exists a Tenancy Relationship between the Tenant and the Landlord?
11.The above provision allows the Business Premises and Rent Tribunal to in addition to the powers conferred upon it by the Act investigate on any other matters that may be raised in relation to a controlled tenancy.
12.The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act chapter 301 Laws of Kenya Act at section 2 defines a controlled tenancy as;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;
13.In the present case, the tenant alleges that in December 2021 they rented out the suit property from the Landlord and paid for the deposit, rent for the month of January 2022. That thereafter they locked the premises intending to move in and the landlord has since been interfering with the same by breaking the padlocks to the premises.
14.The Landlord has filed a preliminary objection questioning the authority of the tenant to file the suit on the grounds that they have not presented documentation evidencing their incorporation and resolutions to file the matter in court.
15.Additionally, they have provided before this Tribunal that the premises in question are residential and not commercial and as such they do not fall within the ambit of the Tribunal.
16.I have perused the documents presented before this tribunal and several issues are noteworthy in an attempt to answer the question on Jurisdiction.
17.The tenant has annexed the alleged lease agreement dated November 1, 2021. An examination of the Lease shows that the Lease was executed by the tenant and the agents. The Landlord has provided in their replying affidavit that they entered into an agency agreement with the agent which governs the scope of their relationship.
18.At Clause 4. 7 the agreement provides that
19.The tribunal construes this to mean that before a tenant occupies the premises for which an agent has identified the tenant, the agreement must be signed by the tenant themselves, the landlord and the agent. The agreement annexed by the Tenant has not been signed by the landlord which then puts to question the validity of the said agreement.
20.In addition, the Landlord has annexed another version of the agreement which has a section on which the landlord was supposed to execute.
21.The tribunal also takes note of the fact that the lease agreement annexed by the landlord and the one annexed by the tenant are substantively different in terms of clauses such as that of the Use. The one annexed by the landlord provides the Use as residential while that of the tenant provides that the tenant shall not be restricted as to the scope of use. I find that the use is residential.
22.Accordingly, the tribunal puts to question the validity of the Lease signed by the agent and the tenant. The agent is supposed to act in the interest of the Landlord. The fact that the Agent has signed the agreement is not sufficient to uphold the existence of the tenancy. As per the certificate of lease annexed by the landlord, they landlord is the registered proprietor of the property and as such without his signature the tenancy does not sufficiently exist. The agent cannot purport to give what he does not own.
23.The tribunal also takes note of the fact that through a letter dated November 8, 2021 the landlord expressly communicated to the agent and informed them not to rent out the house until they are advised accordingly. By them proceeding to rent out the said premises, they acted ultra vires to their authority and contrary to the agency agreement.
24.In light of the foregoing, this tribunal cannot establish an existing tenancy relationship between the landlord and the tenant. Despite the fact that the tenant has been paying rent, the same was paid to the agent who did not have the authority to bind the landlord in the tenancy agreement. As such the tribunal holds that it is not clothed with Jurisdiction to entertain the matter and must therefore down its tool.