Mokha v Changalwa [2025] KEBPRT 159 (KLR)

Mokha v Changalwa (Tribunal Case E035 of 2024) [2025] KEBPRT 159 (KLR) (14 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 159 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E035 of 2024

N Wahome, Chair & Joyce Murigi, Member

March 14, 2025

Between

Dinesh Chandula Mokha

Tenant

and

David Makunga Changalwa

Landlord

Ruling

1. This Ruling is on the Landlord/Respondent’s notice pf preliminary objection dated the 21/11/2024. The same is on the following grounds;a.That this Tribunal has no Jurisdiction over the subject matter being a claim over ownership of land parcel No. Kimilili/Kamukuywa/ 2137 now known as Kimilili/ Kamukuywa/5896. b.That the matter in issue concerns ownership of land and the premises on land parcel Number Kimilili/Kamukuywa/5896 which falls outside the Jurisdiction of this Tribunal and this offends provisions of section 12 of the Landlord and Tenant(Shops, Hotels and Catering Establishments) Act, Cap 301 of the Laws of Kenya.

2. We do appreciate that for a preliminary objection, in order to meet the threshold of the law, the facts in issue must not be contested and that a determination would dispose of all the matters in issue conclusively. In the case of; Mukhisa Biscuit Manufacturing Ltd -Vs-Westend Distributors Ltd (1969) EA 696, the court held that ;-“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded as a pleriminary 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 vise to the suit to refer the dispute to arbitration”

3. Sir Charles Newbold Vice Presided and expounded more succinctly on the place of a preliminary objection in the case of; Mukhisa Biscuit Manufacturing Ltd (Supra) where at page 70 thereof he stated thus;-“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is issued 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”

4. We have perused both the parties’ pleadings, evidence and their respective submissions and there is no contest on all the outcome and fundamental facts needed to determine the preliminary objection. Some of the uncontested facts are;-i.The sale of the suit premises by the Agreement dated 8/8/2016ii.The lease Agreement dated 10/9/2016 which cancelled the sale Agreement dated 8/8/2016iii.That lease dated 10/9/2016 was for six (6) years commencing on the 20/12/2017iv.The letter dated 20/12/2022 notifying the Tenant of the imminent expiration of his lease on the 20/12/2023v.The Termination notice dated 27 December, 2023.

5. In our view and as informed from the foregoing, the issues for our determination are on whether this court has wherewithal to Superintend over this matter to its logical conclusion. Secondly, who is to bear the costs of this suit.

6. It is firmly settled in our jurisprudence that jurisdiction is everything and that the same must first be confirmed if raised by any of the parties or by the court on its own motion. In the locus classicus case of; Owners of the Motor Vessels “Lillians” -Vs- Caltex Oil (Kenya) Ltd (1989) KLR, Justice Nyarangi JA stated thus;-“…..I think it is reasonably plain that a question of Jurisdiction ought to be raised at the earliest opportunity and the court seized …….of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it a court has no power to move one more step. Scanty or limited facts constitute the evidence before the court. A party who fails to question the Jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined. I can see no grounds why a question of Jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado”

7. In this matter, the lease Agreement dated 10/9/2016 at clause 7 therefore stated as follows;-“That the Tenancy Contract commenced on the 20/9/2016 and shall be renewed every six (6) years”.A keen look at the so called Lease Agreement, and /or Tenancy Contract has no drop or break clause. It is meant to run continuously for six (6) years with a clause on possible renewal after six(6) years.

8. Section 2 (1) of the Act defines the attributes of a controlled tenancy as follows;-“A controlled tenancy means a tenancy of a shop, hotel, or catering establishment-a.Which has not been reduced into writing and –b.Which has been reduced into writing and which-i.Is for a period not exceeding five (5) years; orii.Contains provision for termination otherwise than for breach of covenant, within five (5) years from the commencement thereof”

9. It is plain that the lease agreement dated 10/9/2016 exceeded five (5) years and did not contain any provision for termination before the expiry of six (6) years. It then follows that the relationship between the parties herein was outside the governance of Cap 301 of the laws of Kenya. This position is fortified by the holding of the Environment and Land court in ELCA No E004 of 2022 Duncan Mokaya Mogaka -Vs- Kefa N. Miyonga (2023) KEELC 17513 (KLR) where Justice Mwangi Mugo held thus;-“The lease was reduced into writing and for 10 years, above the ceiling of 5 years and there is no termination clause that would bring the lease under the Jurisdiction of BPRT. The parties have no right to terminate the lease and are bound by the same for the full term”.

10. The Judge further continued to hold that;-“Consequently, a lease for 10 years reduced in writing and without clause would be found to fall outside the Jurisdiction of the BPRT”.

11. It therefore goes without saying that this court is bereft of jurisdiction to preside and make a determination on this matter. Indeed, both the Landlord and the Tenant in their submissions dated 2/12/2024 and 4/2/2025 admit to this court lacking the pre-requisite in Jurisdiction to oversee the resolution of this matter.

12. We have looked at the notice of termination by the landlord dated 27/12/2023 and we are unable to reconcile the same with the landlord’s preliminary objection herein. The landlord issues the purported notice under the Act and then raises the issues of jurisdiction on the jurisdiction of this court which is donated by the same Act.

13. It is then clear from the above, that the landlord authorized and/or triggered these proceedings by his notice of termination dated 27/12/2023 which was in our view unnecessary. The landlord had the option to invoke the civil or Land and Environment jurisdiction of our courts to enforce the lease Agreement dated 10/9/2016.

14. We would therefore from the foregoing exercise our discretion and order that each party bears own costs of these proceedings. The grounds for these orders are that the landlord triggered these proceedings by his notice of termination dated 27/12/2023 and that the Tenant concealed from the court material facts when this matter had proceeded ex-parte

15. In conclusion, the orders that commend to us are the following;-a.That the preliminary objection dated 21/11/2024 is upheld and the Tenant’s reference dated 22/2/2024 is struck out for want of Jurisdiction.b.That each party will bear own costs of these proceedingsThose are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MARCH 2025HON. NDEGWA WAHOME, MBS(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALANDHON. JOYCE MURIGI(MEMBER)BUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Masiga for the Landlord/RespondentsIn the absence of the Applicant/Tenant