[2024] KEBPRT 203 (KLR)

AMM Holdings Ltd v Troy Medicare Pharmacy Ltd (Tribunal Case E1040 of 2023) [2024] KEBPRT 203 (KLR) (8 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 203 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1040 of 2023

P May, Member

February 8, 2024

Between

AMM Holdings Ltd

Applicant

and

Troy Medicare Pharmacy Ltd

Respondent

Ruling

1. The present proceedings were commenced by the landlord who filed their reference dated 23rd October, 2023 accusing the tenant of failing to honour their contractual obligations by defaulting in paying rent as when it fell due and sub letting the premises without the landlord’s consent. Contemporaneous with the reference, the landlord filed an application under certificate seeking for a plethora of orders including an order to terminate the tenancy.

2. The application was placed before the Tribunal on 24th October, 2023 whereby the landlord was directed to serve the tenant and a date set for inter- partes hearing. The tenant duly entered appearance and filed their response in opposition to the application and reference through the notice of preliminary objection and the replying affidavit. From the onset the tenant has challenged the jurisdiction of the Honourable Tribunal stating that the term of the tenancy was for a period exceeding 5 years.

3. The tenant having challenged the jurisdiction of the Honourable Tribunal, practice dictates that the question took precedence. The parties filed additional responses in support of their positions. The parties elected to canvass the application by way of written submissions. I have considered the submissions on record and would proceed as follows:

4. The Tribunal’s jurisdiction is circumscribed under Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act a controlled tenancy is defined as a tenancy of a shop, hotel or catering establishment which has been reduced into writing and which is for a period not exceeding five years.

5. Under section 2(i) of Cap 301, a controlled tenancy means a tenancy of a shop, hotel or catering establishment;a)Which has not been reduced into writing orb)Which has been reduced into writing and which;(i)Is for a period not exceeding five years or(ii)Contains provision for termination otherwise than for breach of covenant within five years from the date thereof or(iii)Relates to premises of class specified under subsection (2) of this section.

6. The parties herein contest the manner in which the tenancy commenced. Each of them however agrees that their intention to contract was reduced into writing. According to the tenant and the agreement that he adduced, the term of the tenancy was 7 years and 3 months. The landlord has on the other hand has in their pleadings stated that the term of the tenancy was for 5 years and 3 months.

7. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of; Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

8. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of; Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

9. Guided by the above and having considered the evidence by the parties against section 2 of what constitutes controlled tenancy, the Tribunal is convinced that the tenancy was for a period exceeding 5 years hence did not fall under the ambit of controlled tenancy unless the opposing party proved that the tenancy met the other conditions provided under Cap 301.

10. In the often-quoted case of; Mukhisa Biscuit Vs West End Distributors, the court stated that:“…Preliminary objection is in the nature of what used to be a demurer. It raises pure points 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 facts have to be ascertained or if what is sought is the exercise of judicial discretion.”

11. Having made the above findings that the Tribunal lacks jurisdiction, the Tribunal shall forthwith down its tools. The tenant’s notice of preliminary objection is allowed with no orders as to costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF FEBRUARY 2024HON. PATRICIA MAYMEMBER08. 2.2024Delivered in the presence of;Manyonge holding brief for Mutunga for the TenantMuhatia for the Landlord