Keah v Mulwan [2022] KEBPRT 754 (KLR)

Keah v Mulwan (Tribunal Case E006 of 2022) [2022] KEBPRT 754 (KLR) (Civ) (16 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 754 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E006 of 2022

CN Mugambi, Chair

September 16, 2022

Between

Michelle Keah

Landlord

and

Jackeline Mulwan

Tenant

Ruling

1. The notice of preliminary objection by the tenant raises the following grounds against the landlord’s application dated January 12, 2022. a.That the applicant has no locus standi to bring this suit on behalf of the landlady.b.That this matter is res judicata because there is a similar matter pending in court being Tribunal case No E108 of 2021, Jackline Akoth Mulwan v Florence M Ambundo.c.That the said matter has been filed by the tenant against the landlady. The Tribunal case No E006 has been filed by the daughter of the landlady against the same tenant over the same issues.d.That this case is an abuse of the court process and the same ought to be dismissed with costs.

2. Does the preliminary objection raised by the Tenant, amount, strictly to what the law deems a preliminary objection? In the case of Mukisa Biscuits Manufacturing G Ltd v West End Distributors [1969] EA 696, the court stated;“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 preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.”

3. The capacity of the Applicant in this suit to sue is a matter to be ascertained, evidence has to be led either orally or by way of affidavits to establish the same. Similarly, whether this matter is res judicata because there is similar matter pending before the Tribunal is a matter of evidence. The notice of preliminary objection on its own self cannot establish this fact.

4. Whether BPRT case No E108 of 2021 has been filed by the tenant herein against the landlady and whether the instant suit has been filed by the daughter of the landlady is a matter subject to proof.

5. The notice of preliminary objection filed herein raises issued of mixed fact and law and does not amount strictly to a preliminary objection. Various issues as highlighted above would have to be ascertained before the preliminary objection is determined.

6. I therefore find no merits in the notice of preliminary objection dated March 1, 2022 and the same is hereby dismissed with costs to the landlord/applicant.

HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 16th day of September, 2022 in the presence of Ms Atieno for the Landlord and in the absence of the Tenant and Counsel.HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNAL