Esther Kaimuri Mboroki t/a Esgray Company Limited v Vumira Enterprises Limited [2024] KEBPRT 383 (KLR)

Esther Kaimuri Mboroki t/a Esgray Company Limited v Vumira Enterprises Limited (Tribunal Case 783 of 2023) [2024] KEBPRT 383 (KLR) (1 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 383 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 783 of 2023

Gakuhi Chege, Chair & J Osodo, Member

March 1, 2024

Between

Esther Kaimuri Mboroki t/a Esgray Company Limited

Plaintiff

and

Vumira Enterprises Limited

Defendant

Ruling

1. The landlord filed a notice of preliminary objection dated 29th November 2023 against the tenant’s application dated 10th November setting out the following grounds:-i.That there is no tenancy relationship as envisaged under Cap 301 between the Landlord and the Tenant.ii.That the tenancy relationship between the Landlord and Esgray Company Limited terminated in 2022 but the Applicant/Tenant deliberately refused to move and vacate the premises.iii.That the Tenant is a forceful detainer and trespasser who forcefully wants to be a Tenant of the Landlord which is unlawful.iv.That the payments are mesne profits for forceful retainer as there is no tenancy relationship.v.That the Tribunal having no jurisdiction, the orders sought and obtained should be summarily set aside and vacated forthwith.

2. It is on the foregoing basis that the landlord seeks that the Applicant's application dated 15th August 2022 be dismissed with costs.

3. The preliminary Objection is opposed through the tenant’s replying affidavit sworn on 29th November 2023 wherein it is deposed that the issue raised by the landlord that she is a forceful tenant is a blatant lie and misconceived and seeks to rely on communication via letters dated 12th October 2020, 31st December 2020 and 8th March 2021 marked “EKM1”.

4. According to the tenant, the landlord's preliminary objection dated 10th November, 2023 is misconceived, un-procedural, lacks merit and is an abuse of the court process as it is bad in law and incurably defective since a preliminary objection must be raised on the assumption that all the facts pleaded by the adverse party are correct. It should not raise substantive issues from the pleadings which must be determined by a court upon perusal of the evidence. As such, the notice of preliminary objection is attacked as a waste of court's time and a tactic to delay justice.

5. The tenant deposes that this Tribunal has jurisdiction to hear and determine disputes relating to the amount of rent payable by a tenant, the termination of a tenancy, recovery of possession of a business premises by a landlord and any other matter relating to business premises. It is the tenant’s position that the claim herein arises from a matter relating to business premises rent hence the Tribunal has jurisdiction to hear the matter. As such, the preliminary objection is frivolous, vexatious, lacks merit and an abuse of the court process and the same should be dismissed with costs to her.

6. The preliminary objection was directed to be canvassed by way of written submissions. According to the landlord, there were no receipts for payment of rent and the only payments made were through the pay bill account obtained from other tenants without its authority which was not a good ground to declare a tenancy. It is the landlord’s contention that the notices were served upon the tenant to vacate the premises. The landlord seeks that the tenant be declared a trespasser and a forceful detainer who should not be granted the reliefs sought. It is the landlord’s case that the court should dismiss the tenant’s application dated 15th August 2023.

7. The tenant opposes the notice of preliminary objection citing the cases of Hebtulla Properties Limited [1979] KLR 96 & Narshidas & Co. Ltd Vs Nyali Air Conditioning & Refrigeration Services Ltd [996] to argue that this Tribunal has no jurisdiction to issue an injunction. The issue has not been raised in the notice of preliminary objection and it is not clear where the tenant’s submissions were drawn from.

8. In the case of Oraro Vs Mbaja [2006] eKLR, the Superior court had the following to state on what constitutes a preliminary objection at page 3/6-“Mr. Ougo buttressed his submission by drawing from the Court of Appeal decision in Mukisa BiscuitManufacturing Co. Ltd. v. West End Distributors Ltd [1969] E.A. 696. Of preliminary objections, Law, JA in that case said (p.700):“I agree that the application for the suit to be dismissed for want of prosecution should have taken the form of a motion, and not that of a ‘preliminary objection’ which it was not. So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”.And to the same effect Newbold, P stated (p.701):“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.”

9. Based on the foregoing decisions, it is clear that the preliminary objection raised by the landlord does not pass the test laid down therein. For this tribunal to determine it, there is need to inquire into evidential matters which is against the test laid down in the said cases. The facts relied upon are contested and it is therefore not likely to dispose of the case in its entirety.

10. Consequently, we proceed to dismiss the preliminary objection and direct that the application dated 15th August 2023 shall proceed to hearing and determination on the merits.

It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 1ST DAY OF MARCH 2024. HON. GAKUHI CHEGEPANEL CHAIRPERSONHON. JOYCE OSODOPANEL MEMBERRuling read in absence of the parties who were duly notified.