[2025] KEBPRT 277 (KLR)

Akondo v Odhiambo alias Micah Odhiambo (Tribunal Case E075 of 2024) [2025] KEBPRT 277 (KLR) (6 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 277 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E075 of 2024

N Wahome, Chair & Joyce Murigi, Member

May 6, 2025

Between

Alex Okoth Akondo

Landlord

and

Michah Oluoch Odhiambo alias Micah Odhiambo

Tenant

Ruling

1. The Landlord moved this court by his reference dated 13th November 2024. The same was anchored on Section 12(4) of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap.301) laws of Kenya which we hereinafter refer to as “the Act”. In the reference, the landlord sought for the following reliefs;“That he wanted to renovate the building on plot No. 6 in Mukuro Market as per the county requirement for a period not less than a year. Upon completion of renovation, the Applicant/Landlord would like to put the said house into his personal use”.

2. The reference was accompanied by a notice of motion application of the same date. The same sought for the following orders:-(i)That the eviction order do issue against the Respondent/Tenant, his servants, agents or anyone acting under him or under his/her authority in occupation of the shop built on Plot Number 6 Mukuro Market in Migori county.(ii)That the eviction be carried out by BLEGIF CONSULT AUCTIONEERS with the assistance of the OCS MASARA POLICE STATION overseeing the enforcement of the orders and to provide necessary assistance in execution of the orders as issued herein.(iii)That the Respondent/tenant to pay the Auctioneers charges and all subsequent costs incurred in the execution process together with costs incidental to this Application.

3. The Landlord later on filed the amended notice of motion dated 19/12/2024, the supplementary affidavit sworn on the 2/4/2025 and the submissions dated 7/4/2025. The case for the landlord is that:-a.He had issued a notice of termination dated 14/6/2024 on the Tenant which took effect on the 1/9/2024. b.His intention is to refurbish his premises and take up use of the same for at least an year.c.The premises has a pharmacy and the Tenant also used the same as a clinic and even hosted inpatient clients.d.From his reference dated 5/8/2024 and the letter dated 4/8/2024, the Tenant had implicitly admitted to the premises being a business one.e.The Tenant had concealed requisite information to mislead the court that the demised premises were residential.

4. On his part, the Tenant in response to the landlord’s application filed the notice of preliminary objection and the Replying Affidavit both dated the 3/3/2025. The preliminary objection was to the effect that:-“That the amended notice of motion dated 19/12/2025 offends Section 2(1), 11 and 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments Act, Cap 301, Laws of Kenya as the suit premises is a residential premises and as such this Tribunal has no jurisdiction to entertain the Applicant’s Application”.

5. The Tenant further filed a further affidavit sworn on the 12/4/2025 and submissions dated the 14/4/2025. It is the evidence of the Tenant that:-i.The demised premises is a residential one and he is settled therein with his family.ii.He has never operated a clinic or pharmacy within the premises.iii.He was not the only tenant in the residential premises and had supplied the court with photographs to show all the attributes of a residential premises as pertains to the demised premises.iv.This court therefore lacked the requisite jurisdiction to preside over the issues at hand.

6. We have perused the application and the notice of preliminary objection herein and also the respective parties other pleadings, documents and submissions and are of the view that the issues that arise for determination are the following:-i.Whether the notice of preliminary objection dated 3/3/2025 has merit.ii.Whether the amended notice of motion dated 19/12/2025 is merited.iii.Who should bear the costs of these proceedings?

7. As we evideabour to answer the identified questions, we appreciate that no tenancy agreement has been availed to court by either of the parties. There is also no indication however remote that any was ever entered into in writing. We are therefore required to interrogate the parties pleadings, evidence and submissions and reach a determination.

8. Both parties in their filings in court have not agreed on any issue only that a landlord and Tenant relationship subsists. For the Landlord, it is on a Business premises whereas for the Tenant it is on a residential premises.

9. From the contradicting positions taken that this matter it is apparent that this matter may not be resolved by way of a preliminary objection. This is simply because the facts of this case are not agreed upon. In this we find reliance on the case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd (1969) EA 696 where the court held that:-“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”.

10. The same court further and which is most relevant to this matter held that:,“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”.

11. From the pleadings and evidence herein, no pure point of law may arise therefrom by implication, all the facts are also heavily contested and in our view the notice of preliminary objection dated 3/3/2025 does not meet the threshold of the law and is dismissed.i.The 2nd issue for determination is on the merit of the Application dated 19/12/2024. We do take cognizance that the issue of whether this court has jurisdiction or not to superintend over this suit is yet to be determined. We would therefore be very reluctant to venture into the merits or otherwise of the said application.ii.From the materials on record, this is a matter that should proceed to full hearing for the ends of justice to be achieved. By this, the parties will testify and be cross-examined and will be afforded an opportunity to avail witnesses in court.

12. This court will also be in a position to order for an inspection of the demised premises and for a report of such inspection to be filed in court.

13. We would therefore respectfully decline to make any determination on the amended notice of motion dated 19/12/2024 and direct that this matter proceed to full hearing through visa voce evidence.iii.On costs, we are of the view that the same do abide the outcome of these proceedings.

14. In the final analysis, the orders that commend to us are the following;i.That the notice of preliminary objection dated 3/3/2025 is dismissed.ii.That this matter shall proceed to full hearing by way of viva voce evidence and parties shall comply with order 11 of the Civil Procedure Rules in 30 days and exchange their respective evidence.iii.That the inspector of this court shall within 30 days of the date hereof visit plot No. 6 within Mukuro Market in Migori County and prepare a report on its status and file the same in court.iv.That the costs herein shall abide the final outcome of these proceedings.Those are the orders of this court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6THDAY OF MAY, 2025. HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL.BPRT.Ruling delivered in the presence of Mr. Jura for the Landlord/Applicant and Mr. Omondi for the Tenant/Respondent.HON. NDEGWA WAHOME MBS, HON. JOYCE MURIGI,PANEL CHAIRPERSON, MEMBER,BUSINESS PREMISES RENT TRIBUNAL BPRT.