Tripple Focus Service Ltd v Norkan Investments Ltd & another [2022] KEBPRT 661 (KLR)

Tripple Focus Service Ltd v Norkan Investments Ltd & another (Tribunal Case E250 of 2022) [2022] KEBPRT 661 (KLR) (Civ) (15 June 2022) (Ruling)

Neutral citation: [2022] KEBPRT 661 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E250 of 2022

Gakuhi Chege, Vice Chair

June 15, 2022

Between

Tripple Focus Service Ltd

Applicant

and

Norkan Investments Ltd

1st Respondent

Tradewide Auctioneers

2nd Respondent

Ruling

1. Before me is a preliminary objection dated 30th March 2022 by the 1st Respondent in which the jurisdiction of this Tribunal to hear and determine the instant suit is denied on the grounds that the Applicant is a licensee and not a tenant and thus has no legal interest over the premises.

2. It is also submitted that the applicant’s application is fatally defective, misconceived, incompetent, bad in law and a wanton abuse of this court process and the same ought to be struck out.

3. In the application dated 16th March 2022, the tenant/applicant states that it has been a tenant at the suit premises for over five years and that on 9th March 2022, the 2nd Respondent visited the tenant’s shop and harassed its shop attendant by pushing her out and locking the same.

4. A notification of sale was served upon the tenant for the listed items on account of Kshs.1,005,765. 30. No prior notice or demand for rent had been made to the tenant. The tenant annexes receipts for payment of rent dated 7th and 9th March 2022.

5. On the other hand, the 1st Respondent filed a replying affidavit sworn on 30th March 2022 by its General Manager one Bizzu Kanja attaching a license agreement which is undated between Parkside Developments Limited as the licensor and Triple focus Services Ltd as the licensee and Norkan Investments Ltd as superior lease holder in respect of units G.29 & 30 (G. crafts unit 29 & 30) for a period of three (3) years from 1st July 2020 until 30th June 2023. The document is marked ‘BK-1’.

6. The preliminary objection was directed to be canvassed by way of written submissions and both parties complied. I am required to determine whether to uphold or dismiss the preliminary objection.

7. In the case of Oraro v Mbaja [2005] eKLR at page 3/8, the superior court set out the test of what amounts to a preliminary objection 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”.

8. In this matter, I am required to determine whether the relationship between the tenant/applicant and the 1st Respondent is a tenancy or a license. This cannot be determined without interrogating the whole relationship through documentary and factual dealings between the parties in line with the decisions in the case of BP Nairobi service station Ltd v BP Kenya Ltd [1989] eKLRand National Social Security Fund v Sokomania Ltd & 3 Others [2018] eKLR.

9. In the premises, I am not satisfied that the 1st Respondent’s preliminary objection has passes the test in Oraro v Mbaja (supra) case and the Locus Classicus decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 at page 700 where it was held as follows:-“So far as I am aware, 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”.

10. As per Sir Charles Newbold P. at page 701:-“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”.

11. I do not wish to discuss this case further to avoid embarrassing a fair trial and hereby proceed to dismiss the preliminary objection dated 30th March 022 with costs to the tenant/applicant.

12. The matter shall proceed to hearing and determination on the merits.It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 15TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of parties.Order: Further mention on 21st July 2022 to fix a hearing date for the pending application.