Business premises rent tribunal in limbo

The 1965 Landlord & Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301, the Laws of Kenya established what has come to be known as the Business Premises Rent Tribunal (BPRT)

For over 40 years, BPRT has served both landlords and tenants all over the country and the adjudicating process of disputes of “controlled tenancies” of business premises falling under the definition of “shop, hotel or catering establishment” has been disposed by the Tribunal with the High Court having appellate and final say in the matters.

In the laws enacted in the post -independence era, the BPRT legislation has been hailed as one of the most effective dispute resolution mechanisms, though not without difficulties and legal intricacies.

The Tribunal has jurisdiction in largely commercial tenancies where the tenancy has not been reduced into writing by the contracting parties or where the lease is less than five years or has a “break clause” to terminate a lease within five years.  The law is inapplicable to government tenancies or premises utilised by fire-arm dealers.

Presently and most regrettably, the functions of the Tribunal are at a total standstill all over the country and thousands of cases are not being adjudicated upon.  The work of the tribunal has been thrown into disarray many times before due to non-appointment of a chairman.

The reason for the abyss is in the finalising of the legalities involved. A chairman, Mr Dennis Silas Mboroki, was appointed by Phyllis Kandie, the Tourism Cabinet Secretary on July 8, 2013 but the gazettement apparently was delayed by the AG’s office until February 3, 2014.  The reason for the Chairman not having taken  over is unclear though it is speculated that the Judicial Service Commission has to formally sanction the appointment.

To bring a national adjudicating institute to a standstill is tragic, unacceptable and tantamount to belittling the part various tribunals play in maintaining law and order in the commercial world.

The appointment process of the Tribunal personnel has always been a confusing process.  The Chairman must be a lawyer, the former Ministry of Commerce was the Ministry under which it functioned with the Chief Justice and the Attorney General playing a statutory part in promulgating rules under the Act.

The Judicial Service Commission must have a say and just like the formal non-appointment of the 28 High Court Judges, the Chairman’s appointment of the BPRT is most likely caught in the bureaucratic governmental process.

In light  of the various changes in the land laws under three  2013 Acts – the Land Act, Land Registration Act and the National Land Commission Act – the BPRT legislation needs urgent re-examination and realigning.

Historically, the Tribunal operated early in its days with a Chairman and at least three members.  As the workload of the Tribunal increased, members were appointed for major town centres such as Mombasa, Kisumu, Nakuru and Eldoret.

Somewhere down the line, the appointment of members was discarded on the basis that the law, under Section 11 of the Act, allowed the Tribunal to be comprised of one person – effectively  making the Tribunal a one-man court without the input of lay members.

The Tribunal presently has sub registries all over the country with the Chairman expected to adjudicate thousands of cases all over the country. It is virtually humanly impossible for one Chairman to effectively deal with cases all over the country.

The ideal scenario should be to appoint a Tribunal Chairman for every county.  Of course establishing 47 branches poses logistic nightmare. There is another school of thought that in this day and age there is no need for preferential treatment of tenants and that the Tribunal should be abolished totally, leaving the willing parties to enter into agreements as in other commercial matters.

Yet another, and perhaps more plausible option is for the Tribunal to be integrated into the Environment and Land Courts established under Article 162 of the Constitution.

The Chairman of the Tribunal is often fished out of the mainstream subordinate court judiciary but with greater responsibilities. In times to come the status of the Chairman should be raised to that of a Judge.  This is even more important in view of the documented history where many a Chairman of BPRT have fallen prey to corruption allegations, criminal investigations, resignations, and even prosecutions, thereby eroding the confidence in the Tribunal.  County Chairman and Vice-Chairman, too, should be considered.

The 16- section statute has resulted in mammoth litigation with the law reports full of intricate and complicated interpretation of the laws.  Simplification of the laws with all the experience of the 48 years of the Tribunal’s existence  needs urgent re-codification and  rethinking if Kenyans are to instil  local and international confidence in the matters  of law relating to  landlord and tenant relations.

It behoves the Parliament to bring the BPRT under one umbrella – that of the Judicial Service Commission – and to make meaningful changes including giving right to a second appeal to the Court of Appeal.

Immediate and long-term woes of the Tribunal need to be addressed as usual by the Chief Justice, the JSC, the Law Reform Commission and with some intervention in this case from the Cabinet Secretary in charge of Commerce.

Mr Bowry is an Adovocate of the High Court of Kenya

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