Monica Waithera Chege t/a Wakalucy v Acquarium Guest Homes Limited & Raphael George Macharia [2022] KEBPRT 35 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E010 OF 2021 (NAIROBI)

MONICA WAITHERA CHEGE T/A

WAKALUCY...............................................................................TENANT/RESPONDENT

VERSUS

ACQUARIUM GUEST HOMES LIMITED.........................................1ST RESONDENT

RAPHAEL GEORGE MACHARIA.................................LANDLORD/RESPONDENT

RULING

1. The notice of preliminary objection dated 7th September 2021 filed by the 1st Respondent raises the following issues;

a. That there is no Landlord/Tenant relationship between the 1st Respondent and the Tenant which tenancy was terminated upon demolition of the Tenant’s shop by the Athi Water Works Ltd hence this Tribunal has no jurisdiction to hear and determine this matter.

b. That the Tenant is not in occupation after the demolition of the said shop.

c. The Tenant’s motion dated 17th May 2021 should be dismissed with costs to the 1st Respondent.

2. On 5th October 2021, the parties herein were ordered to argue the preliminary objection by way of written submissions.  As at the date of writing this ruling on the notice of preliminary objection, only the 1st Respondent’s submissions were on record.  In the said submissions, the 1st Respondent has stated;

a. That the preliminary objection and the motion (presumably the one dated 7th September 2021) are uncontroverted.

b. That the gist of the preliminary objection and the motion is that no Landlord/Tenant relationship exists between the 1st Respondent and the Tenant.

c. That the Applicant’s premises were demolished and both the 1st Respondent and the Tenant were compensated.

d. That the tenancy relationship between the Applicant (1st Respondent) and the 2nd Respondent still exists.

e. That the constructive eviction orders issued on 25th August 2021 can only be issued upon a reference and not a complaint.

f.That the preliminary objection be upheld and the application dated 7th September 2021.

3. The submissions by counsel for the 1st Respondent in my view, amount more to a response to the notice of motion dated 17th May 2021.  If I were to determine the issues raised in the preliminary objection, then I would require to review the evidence in the file and satisfy myself on the following issues;

a. Whether there exists a Landlord/Tenant relationship between the 1st Respondent and the Tenant herein.

b. Whether as a matter of fact, the Tenant’s shop was demolished and whether it was on riparian land.

c. What is the legal and factual status of the lease agreement entered into between the Tenant and the 2nd Respondent?

d. Whether it is factual that the Tenant was compensated for the demolished premises (if indeed it was demolished) and if such demolition terminated the lease between the 1st Respondent and the Tenant on the one hand and the lease between the Tenant and the 1st Respondent on the other hand.

e. Whether the orders issued on 25th August 2021 may be set aside.

4. In view of the need to review evidence or call for evidence to satisfy the demands of the preliminary objection, I am of the view that the preliminary objection raised by the 1st Respondent does not raise a pure point of law and does therefore not meet the legal threshold of preliminary objections.

5. I have also looked at the request at paragraph 12 of the 1st Respondent’s submissions where the 1st Respondent prays that the motion dated 7th September 2021 be allowed.  At prayers 6, 7 and 8, the Applicant seeks the following orders;

a. The honourable Tribunal be pleased to order the Rent Inspector to inspect the suit premises and to prepare a status report on who is in physical occupation of the suit premises.

b. The honourable Tribunal be pleased to order the parties herein to share the court inspection charges.

c. The OCS Kiambu Police Station to enforce peace and tranquility.

6. The Applicant in seeking the above orders clearly admits to the jurisdiction of the Tribunal although I am alive to the fact that parties cannot confer jurisdiction upon a Tribunal.  I do find it contradictory that the Applicant/1st Respondent would urge the Tribunal to find that it has no jurisdiction and still urge the Tribunal to continue dealing with this matter in terms of the orders sought under prayer 6 of its application dated 7th September 2021.

7. The notice of preliminary objection dated 7th September 2021 lacks merit and the same is hereby dismissed with costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI (CHAIRMAN) THIS 7TH MARCH 2022 IN THE PRESENCE OF MR MURIMI FOR THE APPLICANT/LANDLORD AND IN THE ABSENCE OF THE OTHER PARTIES.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL