Kaguni v Gitau [2025] KEBPRT 290 (KLR)

Kaguni v Gitau (Tribunal Case E063 of 2025) [2025] KEBPRT 290 (KLR) (21 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 290 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E063 of 2025

CN Mugambi, Chair

May 21, 2025

Between

Stanely Gitau Kaguni

Tenant

and

Simon Mburu Gitau

Landlord

Ruling

1. The Respondent’s notice of Preliminary Objection dated 12. 2.2023 is brought on the following grounds, which I will take the liberty to summarize as follows;-a.That the present Application is Res judicata as the issues raised herein were conclusively determined in Consolidated Suit No. BPRT 1594/2022. b.That the Applicant’s filing of the instant suit is a blatant abuse of the Tribunal’s process.c.That the Tribunal lacks the jurisdiction to entertain the present Application since it is barred by the principles of Res judicata and estoppel, and the finality of consent orders.d.That the consent recorded in Consolidated Suit No. BPRT 1594/2022 is binding upon both parties and has the force of a Judgment.e.That the present Application is filed in bad faith and with ulterior motives as the Applicants seek to extend their stay in the premises despite having agreed to vacate by 12. 2.2025. f.That the suit is in violation of the principle of Pacta Sunt Servanda and an attempt to escape contractual obligations.g.That the Respondent duly served the Applicant with a termination notice dated 23. 11. 2024 and the Applicant failed to challenge the aforesaid notice within the required legal timelines.h.The Applicant’s Application does not disclose a prima facie case warranting the intervention of the Tribunal.i.The suit goes against the precedent against re-opening settled matters.j.The filing of the present Application is a waste of judicial time and resources.

2. The issue that I have to deal with at this stage is whether the Respondent’s notice of Preliminary Objection brought on the grounds set out above amounts to what the Law would STRICTLY qualify as a Preliminary Objection.

3. In the case of; Oraro vs Mbaja [2005] KEHC 3182 (KLR), the court stated as follows;-“A Preliminary Objection correctly understood is …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…Where a court needs to investigate facts, a matter cannot be raised as a Preliminary Objection.”

4. In the case of; Mukisa Biscuits Manufacturing Co. Ltd vs Westend Distributors Ltd [1969] EA 696, the court stated as follows;-“A Preliminary Objection is in the nature of what used to be a demeanor. 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 point has to be ascertained or if what is sought is the exercise of judicial discretion.”

5. The determination of the objections raised by the Respondent, in my view, would require the consideration of facts and therefore evidence. Whether or not this matter is res judicata and therefore an abuse of the process of court would require a consideration of the facts and orders in BPRT Case NO. 594 of 2022. The consent orders recorded in the said suit would have to be demonstrated in this suit by way of an affidavit. Whether or not the instant suit is filed in bad faith and with ulterior motives cannot be established by merely stating so, the Respondent would need evidence to demonstrate that state of affairs. Whereas it is a true principle of contract and International Law that agreements must be kept, the agreement to be kept has to be ascertained in this matter by way of evidence.

6. The Respondent has raised the ground that the Tenant was served with a notice to terminate tenancy but failed to oppose the same within the required timelines. Again, and respectfully, this is a factual situation the veracity of which cannot be established by a Preliminary Objection. The actual notice served would have to be produced in evidence alongside the affidavit of service by a competent process server who effected the service of the same.

7. Whether or not the Tenant has established a prima facie case can only be considered while determining the Applicant’s Application for injunction.

8. Further, it is true that the Respondent does not accept the Applicant’s facts as pleaded in his case. The Preliminary Objection is therefore not based on a commonly accepted set of facts. In the case of; El Busaidy vs Commissioner of Lands & Another [2002] KLR 508, the court expressed itself as follows;-“The Preliminary Objection herein was raised by the Defendants. Can it be said that they do accept the facts as pleaded by the Plaintiff to be true; in which case they could then apply the provisions of Section 136(1) to it to make the Plaintiff’s pleadings a nonstarter? But the Defendant’s defend this suit because they do not accept the Plaintiff’s facts as pleaded. Clearly therefore, the Defendant’s Preliminary point is not based on a commonly accepted set of facts and the set of facts herein would not therefore be the basis of a preliminary point of objection and a point of law as understood and accepted in our jurisdiction.”

9. In conclusion, I do not find any merits in the notice of Preliminary Objection raised by the Respondent and I am of the view that the objections raised by the Respondent ought to be argued in the natural manner as Applications are argued. The Preliminary Objection is dismissed with costs to the Applicant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21STDAY OF MAY, 2025HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Kuria for the Landlord and Mr. Stanley Gitau Kaguru- the Tenant and in the absence of his Counsel.Court: The Tenant’s Application dated 17. 1.2025 is now fixed for hearing on 23. 07. 2025.