Naseer Ahmed t/a Makarim Limited v Rubis Energy Kenya Limited & another [2025] KEBPRT 192 (KLR)

Naseer Ahmed t/a Makarim Limited v Rubis Energy Kenya Limited & another (Tribunal Case E011 of 2024) [2025] KEBPRT 192 (KLR) (25 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 192 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E011 of 2024

P Kitur, Member

February 25, 2025

Between

Naseer Ahmed t/a Makarim Limited

Applicant

and

Rubis Energy Kenya Limited

1st Respondent

Maurice Osundwa t/a Mamuka Auctioneers

2nd Respondent

Ruling

1. The matter is coming up for a Ruling on the Preliminary Objection dated 18th December 2024 filed by the 1st Respondent on the grounds that:-i.The Business Premises Tribunal lacks the jurisdiction and/or powers to punish for contempt under the current dispensation as such powers are neither expressly conferred upon the Tribunal nor implied therein.ii.The Tenant’s Application dated 2nd December 2024 is therefore irregular, null, and void ab initio to the extent that it invites the Honorable Tribunal to cite the 1st Respondent’s Managing Director or CEO and the Legal Officer for contempt of this Honourable Tribunal’s orders issued on 21st November 2024 in the matter.

2. The Preliminary Objection arose from the Applicant's Application dated 2nd December 2024, which primarily sought an order from this court finding the Respondent in contempt of court for failing to comply with the orders issued on 21st November 2024.

3. The orders were issued pursuant to the Application dated 19th November 2024, wherein the court granted the Applicant a temporary injunction prohibiting and restraining the Respondent from unlawfully evicting them pending the inter-partes hearing of the application. The Applicant was directed to serve and file an affidavit of service.

4. The Applicant states he served the orders upon the 1st Respondent’s Legal Counsel via an electronic mode of service, specifically WhatsApp. However, the Respondent failed to comply with the orders as required by the Application. Aggrieved by the Respondent’s action, the Applicant filed the Application dated 2nd December 2024, seeking an order from the court finding the Respondent in contempt of court.

5. In response, the 1st Respondent filed a Replying Affidavit and a Preliminary Objection, both dated 18th December 2024, in opposition to the Application dated 2nd December 2024.

6. On 20th December 2024, the Applicant submitted its amended grounds of opposition to the 1st Respondent's Preliminary Objection. The Applicant largely disputed the grounds on which the Preliminary Objection was based, arguing that this tribunal indeed has the jurisdiction to determine an application about contempt of court, pursuant to the provisions of the Constitution of Kenya, the Judicature Act, and the Landlord and Tenants (Shop, Hotels, and Catering Establishments) Act Cap. 301.

7. On 24th December 2024, the parties took this court's direction to have the Preliminary Objection dated 18th December 2024 disposed of by way of written submissions, to which both parties complied. I have perused all the pleadings on record by both parties and their respective submissions. I have also had the advantage of reviewing the case laws cited.

8. In light of the Preliminary Objection, it is my considered view that this matter will be resolved by answering the question as to whether this tribunal has the jurisdiction to punish for contempt of court.

9. The criteria for considering a preliminary objection are well established. A preliminary objection must only raise pure points of law. The principles that the Court must apply in deciding the merits of the Preliminary Objection were outlined by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 where the court stated:-“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary 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 rise to the suit to refer the dispute to arbitration.”At page 701 Sir Charles Newbold, P added:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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 ...”

10. For a Preliminary Objection to succeed, the following tests must be met: Firstly, it should raise a pure point of law; secondly, it assumes that all facts pleaded by the other side are correct; and finally, it cannot be raised if any fact needs to be ascertained or if it involves the exercise of judicial discretion.

11. Clearly, a preliminary objection must be based on a settled and straightforward point of law, so that its application to undisputed facts leads to only one conclusion: that the facts are incompatible with the point of law.

12. In the present case, the preliminary objection concerns the tribunal's jurisdiction, specifically asserting that this court lacks the authority to punish for contempt of court. It is well established that jurisdiction is a fundamental requirement for a Court to have when dealing with any matter before it. This was emphasized in the leading case of Owners of the Motor Vessel "Lillian S" versus Caltex (Kenya) Limited [1989] eKLR, where it was held that jurisdiction is everything for a Court. That without jurisdiction, a Court lacks the power to proceed.

13. In the case of Samuel Kamau Macharia & Another- vs-. Kenya Commercial Bank Limited & 2 others (2012) eKLR, the Supreme Court of Kenya had the following to say at paragraph 68 on the question of jurisdiction:-“A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law……the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings”.

14. This Tribunal’s jurisdiction with respect to issues of contempt is clearly defined under section 12 of the Landlord and Tenant (Shop, Hotel, and Catering Establishments) Act Cap. 301, Laws of Kenya and section 12 (2) thereof states as follows:-“A Tribunal shall not have or exercise any jurisdiction in any criminal matter or entertain any criminal proceedings for any offence whether under this Act or otherwise”.

15. In Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) the Court of Appeal quoted the decision in Re Breamblevale Ltd [1969] 3 All ER 1062 where Lord Denning stated that:“A contempt of court is an offence of a criminal character. A man may be sent to prison.......”

16. It is well-established law that contempt of court is a quasi-criminal offense. This Tribunal, being barred by Section 12(2) of Cap. 301, Laws of Kenya, cannot entertain such proceedings.

17. Based on the foregoing analysis, this tribunal finds that the preliminary objection raised by the 1st Respondent is valid and is hereby upheld, and the Application dated 2nd December 2024 is consequently dismissed for want of jurisdiction.

18. Costs shall abide the outcome of the main suit.

19. It is so ordered.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 25TH DAY OF FEBRUARY 2025In the presence of Owino for the Landlord and Kitala for the Tenant.