Celton Enterprises Limited & Bealline Kenya Auctioneers v Ravina Agencies Limited [2022] KEBPRT 112 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 314 OF 2021 (NAIROBI)

CELTON ENTERPRISES LIMITED..............................................................LANDLORD

BEALLINE KENYA AUCTIONEERS........................................................AUCTIONEER

VERSUS

RAVINA AGENCIES LIMITED............................................................................TENANT

RULING

1.   The Tenant/Respondent has raised a notice of preliminary objection dated 16th June 2021 to the reference by the Landlord on the following grounds;

a.That the relationship between the parties is not a tenancy as per section 2 of Cap 301 of the laws of Kenya.

b.   That further, the purported tenancy is not a controlled tenancy as per section 2 of Cap 301.

2.   The Tenant’s submissions point to the fact that the tenancy in this case is outside the ambit of controlled tenancies and therefore this Tribunal has no jurisdiction to hear the matter.  The reason given by the Tenant for the proposition is that the parties herein have a joint venture in terms of the agreement marked as FB2 in the supporting affidavit of the Applicant dated 3rd June 2021.  The Tenant, in the same breath seems to state that there exists no tenancy between the parties.

3.   The Landlord on its part has submitted that the question of jurisprudence is a pure question of law.  The Landlord further states that the Tenant has subjected itself to the jurisdiction of this honourable Tribunal by applying for, obtaining and enjoying interim orders granted by the Tribunal.  It is farther submitted by the Landlord that the issue whether there exists a Tenant/Landlord relationship between the parties herein is not entirely a matter of law since facts and evidence is required to show and or demonstrate this fact.

4.   The only reasons advanced in the Tenant’s notice of preliminary objection are basically that there does not exist a Landlord/Tenant relationship between the parties herein.  The Tenant states that what exists between the parties herein is a joint venture governed by the agreement annexed in the Tenant’s replying affidavit.

5.   The determination of the relationship between the parties herein is a mixed determination of law and fact.  The thrust of the Landlord’s affidavit sworn on 1st April 2021 is to the effect that the Respondent is a rent paying Tenant and that indeed the Tenant has already paid Kshs 1,150,000/- to the Landlord as rent.  The Tenant on the other hand denies that there exists a Landlord/Tenant relationship between the parties.  I agree with the Landlord that in order to determine this issue, the Tribunal will have to delve into evidence.  The Tribunal will have to consider and take arguments on the place of the joint venture agreement and on the actual nature of the relationship between the two parties.

6.   I also note that though the parties cannot confer jurisdiction on the Tribunal by their pleadings, the Tenant herein approached the Tribunal for interim relief by the application dated 3rd June 2021.  In the said application, the Tenant states that it is desirous of having the suit heard but requires orders of stay of execution.  In its supporting affidavit, the Tenant avers that the Landlord will not suffer any prejudice by the grant of the application as the Tribunal has the power to order payment of rent and other damages suffered after both parties are granted their day in court.  The Tenant is still enjoying the orders granted pursuant to its said application.

7. A preliminary objection is in the nature of what used to be a demurrer.  It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.  It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion (see the words of Sir Charles Newbold in Mukhisa Biscuits Manufacturers Ltd Vs Westend Distributors Ltd).

8.   Applying this test to the facts of this case, it is clear that it is not agreed between the parties whether or not the Tenant is the Tenant of the Landlord.  it is a fact to be ascertained.  This coupled by the conduct of the Tenant leaves the Tribunal with no choice but to dismiss with costs the Tenant’s notice of preliminary objection dated 16th June 2021 and which I hereby do.

9.   Matter to be mentioned on 24th January 2022 for further directions.

10. The interim orders are extended.

11. Mention notice to issue.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI (CHAIRMAN) THIS 6TH DAY OF JANUARY 2022 IN THE PRESENCE OF MWENDA FOR THE APPLICANT AND IN THE ABSENCE OF THE OTHER PARTIES.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL