Restitution Chambers Kenya Limited v Akiba Properties Kenya Limited; Scolastica Wambui Kibathi(Intended Interested Party/Respondent) [2021] KEBPRT 100 (KLR)

REPUBLIC OF KENYA

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VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 90  OF 2021  (NAIROBI)

RESTITUTION CHAMBERS KENYA LIMITED..............................TENANT/APPLICANT

VERSUS

AKIBA PROPERTIES KENYA LIMITED.................................LANDLORD/RESPONDENT

SCOLASTICA WAMBUI KIBATHI.....INTENDED INTERESTED PARTY/RESPONDENT

RULING

1. The landlord herein has moved this Tribunal through a preliminary objection dated 23/8/2021 on four (4) grounds.

2. The 1st ground is that there is no (and has never been) landlord and tenant relationship between Akiba properties Limited and Restitution Chambers Kenya Limited and the honourable Tribunal therefore lacks jurisdiction to entertain the proceedings.

3. The 2nd ground is that there is no resolution or valid resolution of Restitution Chambers Kenya Limited approving the institution of these proceedings.

4. The 3rd ground is that there is no resolution or valid resolution of Restitution Chambers Kenya Limited appointing the firms of advocates that have purported to represent the Applicant.

5. The 4th and final ground is that the suit is defective, bad in law and does not lie.

6. The preliminary objection is opposed through a replying affidavit of Kenneth Mwige sworn on 16th September 2021 who is a director of the Tenant/Applicant.

7. In answer to ground one of the objection, he deposes that the Tenant/Applicant has been operating a commercial business since the year 2014 to date.

8. He further deposes that development of the suit property was made on the basis of assurances given by Winfred Wangari Karani Gitao a majority shareholder of the landlord/Respondent and beneficiary of the said property.  As such the said Kenneth Mwige deposes that Restitution Chambers Kenya Ltd is not a volunteer, a squatter or a trespasser on L.R No. 414/94 (original number 4148/11/76) stating the relationship between it and the 1st Respondent to be one of Landlord/Tenant.

9. The deponent continues to give details on how the tenant went into possession of the suit property disputing the contents of the preliminary objection.

10. I am now required to consider whether to uphold or dismiss the preliminary objection.

11. In the case of Oraro – vs- Mbaja (2005)eKLR the court cited the decision in Mukisa Biscuits Manufacturing Co. Ltd – vs- West and Distributors Ltd (1969) EA 696 at page 3/6 and went ahead to hold as follows:-

“I think the principle is abundantly clear.  A preliminary objection, correctly understood, is now 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”.

12. The Landlord in its submission contends that it has never been paid rent as the same is collected by the Applicant.  The Respondent has never built premises on the property as the structures thereon were built by the Applicant and remain the property of the Applicant as per the Landlord’s submissions.

13. It is further submitted that Winfred Wangari Karani is a shareholder and director of the Applicant holding 49% shares and never participated in making resolution to lease the property and to commence these proceedings.

14. I find and hold that the issues raised by the Respondent are matters of evidence which ought to be canvassed during a full hearing and cannot be the subject matter of a preliminary objection.

15. In the premises, I proceed to dismiss the preliminary objection dated 23/8/2021 with costs to the Applicant/Tenant.

16. The matter shall proceed for determination of the issues in dispute in the normal manner.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF NOVEMBER, 2021

HON. GAKUHI CHEGE

VICE CHAIR

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In the presence of:

Kagunda for the Applicants/Tenants

Ivy Kagongo holding brief for Mrs. Thongori for the Interested Party.

Further order Mention on 19/11/2021 for directions on the hearing.

HON. GAKUHI CHEGE

VICE CHAIR

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