1.Before me is a notice of preliminary objection dated October 14, 2022 which is couched as follows:-
2.Pursuant to the foregoing objections it is contended that the notice of motion and the reference should be struck out with costs to the landlord on the basis of lack of jurisdiction.
3.The instant proceedings were instituted by the tenant vide a reference dated September 26, 2022 pursuant to section 12(4) of cap 301, laws of Kenya in which the tenant complained that the landlord had made threats to illegally terminate its tenancy.
4.The tenant simultaneously filed a motion of even date seeking for restraining orders pending hearing and determination of the suit. It also seeks to be allowed to be depositing monthly rent with the tribunal.
5.In response to the application and reference, the landlord through one Joseph Kabugi filed a replying affidavit sworn on October 14, 2022 attaching as annexure ‘JK-1’, a lease dated December 2, 2022 executed on December 9, 2020 for a period of 5 years 3 months.
6.According to the landlord, this tribunal does not have jurisdiction to hear and determine this matter as the tenancy is not controlled within the meaning of section 2(1) of cap 301, laws of Kenya. As such the notice of motion and reference was filed before a forum without the requisite jurisdiction to entertain it.
7.The preliminary objection was directed to be canvassed by way of written submissions and both counsels complied with the directions.
9.On the other hand, the tenant’s counsel relies on the contents of paragraph 20(1) (c ) of annexure ‘JK-1’ which states as follows:-
10.According to the tenant’s counsel, no lease was ever prepared or executed but the tenant continued payment of rent and the landlord continued to accept the same. It is therefore submitted that in absence of a lease as contemplated in paragraph 20(b) & (c ), the tenancy is a protected tenancy and the chief Magistrate’s court could not have jurisdiction in absence of such lease.
11.The letter marked ‘JK-1’ is headed subject to lease and is expressed to be “intent to lease the premises on LR No 209/8077 capacity outsourcing (k) Limited”. The term of lease under clause 4 is 5 years 3 months commencing on November 2, 2020 under clause 5.
14.In the instant case, the parties negotiated a lease of 5 years, 3 months and executed the letter marked ‘JK-1’ as the basis of their lease contract. The fact that there was no subsequent lease executed does not in my considered view alter the terms agreed upon so as to make the tenancy controlled. I must give effect to their intention to create an uncontrolled tenancy.
15.In the premises, the preliminary objection is well taken and ought to be upheld with costs to the landlord. The tenant is in the wrong forum and his reference is a candidate for striking out.
16.In conclusion, the final orders which commend to me in this matter are as follows:-a.The landlord’s notice of preliminary objection dated October 14, 2022 is hereby upheld.b.The tenant’s reference and application dated September 26, 2022 is hereby struck out with costs for want of jurisdiction.c.The landlord’s costs are assessed at Kshs 20,000/- all inclusive.It is so ordered.