Imperio Shepherds Medical Group Limited v Abdiaziz Mohamed Hanshi [2021] KEBPRT 67 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E225 OF 2021 (NAIROBI)

IMPERIO SHEPHERDS MEDICAL GROUP LIMITED...TENANT/APPLICANT

VERSUS

ABDIAZIZ MOHAMED HANSHI...............................LANDLORD/RESPONDENT

RULING

1. The Respondent herein, by his notice of preliminary objection dated 9th July 2021has raised the following grounds;

a. That the application is incurable, defective and does not lie.

b. That there exists a tenancy agreement of five years and three months therefore the Tenant is not a protected Tenant as provided for under section 2 of Cap 301, hence this honourable Tribunal has no jurisdiction to entertain this matter.

c. The application is not based on a plaint and the same cannot stand owing to the facts, orders sought are baseless, bad in law and an abuse of the due process.

2. The parties have filed their submissions for and against the preliminary objection.  I summarize the Respondent’s submissions in support of his preliminary objection as follows;

a. The query is, does there exist a lease of 5 years and 3 months thus outing the jurisdiction of this Tribunal?

b. The Applicant has annexed a lease agreement executed by himself, he does not dispute his signature on the said lease agreement.

c. There is an express intention by both parties to enter into an agreement for a period of five years and three months which is still in force.

d. That the Applicant has not come to court with clean hands.  He owes rent arrears in the sum of Kshs 440,000/- and has been issuing bouncing cheques.

e. That by alluding to the exit clauses in the lease agreement, the Tenant has acknowledged there is a lease agreement in existence for 5 years and 3 months.

f. That there is no proof that the reference by the Applicant was actually filed in court.

g. That in the absence of a plaint/reference or complaint, the application herein should be struck out or dismissed with costs.

3. The Tenant’s/Applicant’s submissions in opposing the Landlord’s notice of preliminary objection may be summarized as follows;

a. The tenancy agreement dated 14th August 2020 was only executed by the Tenant.  The Landlord declined to execute the same.  It therefore remains unexecuted or not valid.

b. That the tenancy herein is therefore a controlled tenancy as defined under section 2(1) of Cap 301.

c. That the tenancy between the parties though not enforceable did entail the termination clause in Article No 5(a)(c) and (f).

d. That the issues of whether or not the tenancy agreement was signed by both parties raises very fundamental questions of what was actually before the parties.  That is a question for determination by the Tribunal and cannot therefore be determined/entertained in a preliminary objection.

e. That Business Premises Rent Tribunal cases do not emanate from plaints but by way of complaints or references.  The Tenant’s reference is on record.

f. That the preliminary objection ought to be dismissed.

4. The only issue I have to determine in this ruling is whether the Landlord’s notice of preliminary objection is merited or not and therefore whether the same be allowed or dismissed.

5. I have already set out the facts in the objection in the summarized submissions.  The only valid inquiry would be whether there exists a written lease agreement between the parties for a period of five years and three months.  The Tenant’s position is that whereas it executed its part of the lease agreement, the Landlord did not execute its part.

6. The Tenant’s further case is that even the unexecuted lease agreement in any event contains provisions for termination and particularly under Article 5(a)(c) and (4) of the said agreement.

7. The Landlord on his part has exhibited a lease agreement duly executed by both parties.  The said agreement though executed as such does not bear the stamp of the advocates who witnessed the same.

8. I am in the circumstances faced with two lease agreements, one executed by both parties and one allegedly executed by the Tenant only.  I am not able, at this stage to determine or verify the truth of each of the parties’ averments.  The Tribunal would require evidence to determine this issue and I do agree with the Tenant/Applicant that that issue cannot be determined by way of a preliminary objection.

9. The complaint by the Landlord that this matter ought to have been brought by way of a plaint is not merited.  Proceedings before the Tribunal are commenced by way of a reference under section 6 of Cap 301 or a complaint under section 12(4) of Cap 301.  I have seen on record, the Applicant’s reference dated 22nd June 2021.  The Respondents challenge to the validity of the said reference would require to be established by way of evidence, it cannot be dealt with by way of a preliminary objection.

10. In Nairobi HCC No 88 of 2016, Kenya Breweries Ltd & Another Vs Keroche Breweries Ltd, the Court observed;

“Thus a preliminary objection may be raised on a pure question of law, to discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts.  The facts are deemed agreed as they are prima facie presented in the pleadings on record.”

11. I have already found that certain facts in this dispute are contested.  The preliminary objection cannot be sustained for the reason that those contested facts would have to be ascertained.  In the often quoted case of Mukhisa Biscuits Vs West End Distributors, the court stated;

“…Preliminary objection is in the nature of what used to be a demurrer.  It raises pure points 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 facts have to be ascertained or if what is sought is the exercise of judicial discretion.”

12. I in conclusion do not find any merit in the Respondent’s/Landlord’s notice of preliminary objection dated 9th July 2021 and the same is dismissed with costs to the Tenant/Applicant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this5thday of November, 2021 in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL