Export v Young Traders Limited & another [2025] KEBPRT 240 (KLR)

Export v Young Traders Limited & another (Tribunal Case E1149 of 2024) [2025] KEBPRT 240 (KLR) (2 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 240 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1149 of 2024

J Osodo, Chair & Gakuhi Chege, Member

May 2, 2025

Between

Ganeene Import & Export

Applicant

and

Young Traders Limited

1st Respondent

Sannex Enterprises Auctioneers

2nd Respondent

Ruling

A. Dispute Background 1. Before us is a Notice of Preliminary Objection dated 20th February 2025 filed by the landlord herein, which is based on the following grounds; -i.That the Tribunal lacks jurisdiction to hear and entertain the notice of motion dated 10th February 2025ii.That the notice of motion dated 10th February 2025 is fatally defective for offending Section 12(2) of the Landlord and Tenant (Shops, hotels and Catering Establishments) Act Cap 301, Laws of Kenya.iii.That the claim is an abuse of the court process and thus the application ought to be struck out with costs to the respondent.

2. The tenant moved this Tribunal vide an application dated 24th October 2024 seeking orders to restrain the respondent from selling by way of auction the goods carted away from its premises in recovery of rent arrears.

3. The tenant deposes that it served the Tribunal orders issued on 7th November 2024 upon the respondents but there was no compliance. This led to the tenant filing an application dated 10th February 2025 seeking that the Tribunal finds the directors of the 1st and 2nd respondents’ Company in contempt of the court orders and that they be committed to civil jail for a minimum period of 6 months for disobedience of the said injunctive orders.

4. At a court hearing held on 27th February 2025, the parties were directed to canvass the preliminary objection by way of written submissions. Both parties filed their written submissions with the respondent/landlord filing theirs dated 3rd March 2025 and the tenant filing theirs dated 17th March 2025.

5. The landlord in its submissions state that Section 12 (2) of Cap 301 Laws of Kenya bars the Tribunal from handling any matters that are of a criminal nature. The landlord further states that contempt of court has criminal elements that include possible conviction and sentencing of the contemnor.

6. The tenant on the other hand submits that the applicant’s application is not criminal in nature and ought to be determined before this Tribunal as per the provisions of Section 12 (1) of Cap 301 Laws of Kenya on the basis that there is a controlled tenancy between the parties herein and that this Tribunal has jurisdiction to determine the suit.

7. We shall consider the submissions as we deal with the issue as to whether this Tribunal has jurisdiction to preside over contempt proceedings.

B. Determination and Analysis 8. The test of what constitutes a Preliminary objection was settled in the locus classicus case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696 wherein it was stated as follows:“----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 a contract giving rise to the suit to refer the dispute to arbitration”.

9. The Tribunal was established in 1965 by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 305. The Act is a pre-2010 statute. Prior to 2010, Tribunals were not regarded as subordinate courts. The Constitution of Kenya 2010 changed the status of Tribunals and expressly defined them as subordinate courts. Article 169 of the Constitution provides thus:“1. The subordinate courts are—a.the magistrates’ courts;b.the Kadhis’ courts;c.the Courts Martial; andd.any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by article 162(2).2. Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).”

10. In the case of Restitution Chambers Kenya Limited v Gitao (Miscellaneous Application 50B of 2021) [2022] KEELC 3575 (KLR) Justice B M Eboso stated thus; -“In my view, given that the Business Premises and Rent Tribunal is a court within the meaning of article 169(1) of the Constitution, it has inherent powers to make sure that its processes are not abused and its authority and dignity is upheld at all times. Put differently, it has inherent powers to punish a party for contempt.Counsel for respondent relied on section 14 of the Act and contended that for the applicant to obtain contempt orders, they ought to initiate fresh adoption and enforcement proceedings in a magistrate court and thereafter initiate contempt proceedings in a court other than the Tribunal. I do not agree with that view. Section 14 of the Act is a pre-2010 legislation. The Constitution of Kenya 2010 elevated judicial tribunals to subordinate courts. As a subordinate court, every tribunal exercising judicial authority has inherent powers to punish for contempt by virtue of it being a subordinate court within the meaning of article 169 of the Constitution.”

11. The elevation of Tribunals as subordinate courts under Article 169(1) of the Constitution of Kenya, 2010, was equally restated by the court of appeal in the case of Cyprian Mugambi Ngutari & 5 others Vs Bernard Odero Okello & 5 others being Civil Appeal No. E081 of 2021.

12. The foregoing cases provides sufficient guidance in establishing that the Tribunal has jurisdiction to determine the matter herein and that the notice of preliminary objection has been wrongly raised and the same is a candidate for dismissal.

C. Orders 13. In view of the foregoing, the following orders commend to us; -a.The Notice of Preliminary Objection dated 20th February 2025 is hereby dismissed.b.The application dated 10th February 2025 shall be canvassed by way of written submissions with each party taking 7 days and the tenant starting.c.Costs of the Preliminary Objection shall abide the outcome of the application/reference.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY of MAY 2025. HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)HON GAKUHI CHEGE - (MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of:Karwanda for the respondent/landlordMs. Mote holding brief for Mr. Wachira for the applicant.