Anthony M’mosi c/o R.H.R.C. Church v Shaban Kinungu c/o Said Shaban Kinungu Family & another [2023] KEBPRT 1280 (KLR)

Anthony M’mosi c/o R.H.R.C. Church v Shaban Kinungu c/o Said Shaban Kinungu Family & another (Tribunal Case E054 of 2021) [2023] KEBPRT 1280 (KLR) (8 September 2023) (Ruling)

Neutral citation: [2023] KEBPRT 1280 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E054 of 2021

CN Mugambi, Chair

September 8, 2023

Between

Anthony M’mosi c/o R.H.R.C. Church

Applicant

and

Shaban Kinungu c/o Said Shaban Kinungu Family

1st Respondent

Richard Omondi

2nd Respondent

Ruling

Introduction 1. The 2nd Respondent’s notice of preliminary objection dated 9. 5.2023 is brought on the grounds that:-“This Honourable Court lacks jurisdiction to deal conclusively with this matter whose dispute is over ownership of plot no Kwale/Ukunda/200. ”

The 1st Respondent’s Submissions 2. The 1st Respondent has submitted that he fully agrees with the preliminary objection raised by the 2nd Respondent.The 2nd Respondent has further submitted that the grounds upon which the Tenant brought his Application clearly indicate that the Application is based on ownership of plot no Kwale/Ukunda/200 and not possession of the business premises as alleged.

The 2nd Respondent’s Submissions 3. The 2nd Respondent has submitted that the dispute herein is one over the ownership of the suit property and therefore one which ought to be determined by the Environment & Land Court.

Analysis and Determination 4. The Tenant/Applicant has brought this suit in his own name care of H.R.C. CHURCH. It is not clear at this stage whether the Tenant is suing in her own name or whether it is R.H.R.C. CHURCH which has brought these proceedings. I am not therefore able at this stage to determine the capacity of both parties to bring these proceedings.

5. The 2nd Respondent’s preliminary objection is brought on the basis that the Tribunal lacks jurisdiction to hear this matter for the reason that the dispute is over the ownership of the suit land. But is this so? I think the Tenant herein has brought the suit against the Respondents on the basis that he is a Tenant of the 2nd Respondent who bought the suit land from the 1st Respondent. I do not understand the Tenant to be claiming the suit land as belonging to him.

6. I am further of the view that in order to establish the various issues raised in the parties submissions and the pleadings in this matter, the Tribunal will have to consider affidavit evidence, for example it is critical in this matter to establish whether there exists a landlord/Tenant relationship between the Applicant and each or both of the Respondents, whether the 2nd Respondent purchased the suit land from the 1st Respondent, whether the 1st Respondent is deceased and whether therefore he could be sued?, whether the tenancy of the 2nd Respondent with the 1st Respondent expired, whether the 2nd Respondent had the landlord’s consent to sublet the premises amongst other issues.

7. The above issues cannot be determined by way of notice of preliminary objection, the court would require to consider evidence.

8. In the circumstances, I find no merits in the notice of preliminary objection dated 9. 5.2023 and the same is hereby dismissed with no orders as to costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF SEPTEMBER, 2023. HON. CYPRIAM MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Kamau for the 1st RespondentIn the absence of the other partiesFurther OrdersThe parties to comply with order 11 of the Civil Procedure Code within the next thirty-one (31) days.Reference will proceed for hearing on 19. 10. 2023 virtually.Hearing notice to issue.HON. CYPRIAM MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNAL