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Navigating Filing Disputes at The Business Premises Rent Tribunal (BPRT)

It is astonishing that majority of business owners in Kenya who have rented commercial spaces in major cities and towns across country are not aware of their legal rights when Landlords purport to breach their rights. Since 2020, Landlords have been accused of removing roofs with intent of frustrating rent defaulters to vacate the business premises while others mounting barriers at the entrances of the suit premises. These actions have left a large number of Tenants in utter confusion after forceful eviction. Others are left without knowing where to begin when their tools of trade have long been carted away for public auction.

In light of these prevailing circumstances, the Business Premises Rent Tribunal in Kenya came to the rescue of such Tenants who have fallen victims of illegalities on the part of the Landlords. In Kenya, Tribunals have been categorized among subordinate courts under Article 169 (1) of the Constitution of Kenya, 2010. The Constitution 2010 confers powers to the legislative arm to enact and delegate certain mandates to be performed by a Tribunal as a judicial organ.

As such, the Business Premises Rent Tribunal (“the BPRT”) was enacted as a quasi-judicial organ of the government. Section 11 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya (“the Act”) establishes the BPRT. Further, the Act mandates the BPRT to hear and determine disputes arising out of a controlled tenancy or simply put, a tenancy relationship between a landlord and a tenant of a business premises.

Jurisdiction

Section 12 of the Act enunciates the powers of the BPRT in handling complaints arising from a controlled tenancy relationship. What is a controlled tenancy? Section 2 of the Act defines as:

  • “controlled tenancy” means 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;

Furthermore, section 2 of the Act defines the scope of the meaning of a shop as:

“shop” means premises occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or money’s worth;

It is on this basis that BPRT deals with matters whose suit property, which is the subject matter of the dispute, is a business premise or a commercial space used for purposes of conducting business activities in exchange for money or money’s worth. This is in contrast to a residential unit or living spaces whose matters are determined by Rent Restriction Tribunal (“the RRT”) which has the jurisdiction to entertain such claims.

Therefore, BPRT has power to hear and settle disputes mainly involving: –

  • 1

    Disputes as to the amount being chargeable as rent;

  • 2

    Disputes relating to wrongful termination of an existing tenancy relationship;

  • 3

    Disputes relating to denial of access or entry into the business premises by the Landlord;

  • 4

    In the event of rent arrears, to permit Landlords to levy distress for rent; and

  • 5

    Any other matter relating to business premises.

Simply, the BPRT offers a platform for which aggrieved tenants and landlords may resolve their disputes amicably without first escalating the matters to Court. In contrast to courtrooms, the BPRT saves on costs being paid in litigating matters in Courts. It also saves on time spent in settling claims between Landlords and Tenants as opposed to filing a complaint in Court where matters drag before hearing. BPRT is also not strict on procedural requirements in filing cases as opposed to Courts such as Court of Appeal which require standard documents to be filed failure to which the matter is thrown away and not heard.

Procedure of filing a complaint at BPRT in Kenya
  1. File a Reference which is a standard form prescribed under the Act. A Reference is a primary document used to initiate a complaint either by the Landlord or Tenant seeking redress at the BPRT. The Reference is canvassed as FORM C in the First Schedule of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations (“the Regulations”) which may be filed by either the Landlord or Tenant.
  2. File a written application with the BPRT usually a Notice of Motion application either drawn up by an individual or an Advocate on behalf of the individual. The application must include the following details:   
      • Names and addresses of the Landlord and Tenant;
      • Nature of the orders or relief sought from the Honourable Tribunal; and
      • The grounds upon which such orders are sought.
  1. The application may be accompanied by a Certificate of Urgency which is filed by an Advocate certifying the matter as urgent. The certificate is only limited to certain circumstances where if delay is occasioned the Tenant or Landlord may suffer an irreparable injury. It may also be filed where there are potential threats to Tenant’s fundamental right to peaceful and quiet possession without interference from the Landlord and/or its agents or employees.
  1. The application should be accompanied by a Supporting Affidavit which is duly sworn by the Tenant or Landlord and if it is a company, a duly authorized official such as Director. The Affidavit should contain a narration of how the dispute arose and the evidence to be relied. An Affidavit must be duly signed and stamped by both the affiant/deponent and a Commissioner for Oaths who is a duly admitted Advocate of the High Court of Kenya with a current Practicing Certificate.
  1. Upon filing of the Reference and the Application by either the Landlord or the Tenant, the Tribunal may issue interim orders. These are orders which are meant to preserve or maintain the status quo before the dispute arose between the conflicting parties until the hearing and determination by the Honourable Tribunal of both the Reference and Application. Consequently, a party to whom such interim orders are granted is required to serve the other party to enable them file and serve their response before an interpartes hearing. The answer to this application is usually canvassed by way of a Replying Affidavit.

 

Conclusion

In summary, the Business Premises Rent Tribunal (BPRT) is a legislative invention by the Parliament seeking to offer an avenue for navigating disputes which arise between Landlords and Tenants. BPRT seeks to resolve matters amicably with haste thereby restoring peace between two drifting sides. Therefore, it is integral for Tenants to ensure that Landlords adhere to their tenancy obligations failure to which Tenants may institute a claim at the BPRT as indicated above.

On the other hand, Landlords should also ensure that in the event Tenants fail to perform their obligation under the tenancy relationship, they are at liberty to issue proper notices requiring Tenant to remedy. If the default persists, it is at the Landlord’s discretion to approach the Tribunal through the ways provided above seeking orders to distrain Tenant’s goods as redress among others