[2021] KEBPRT 634 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 911 OF 2019 (NAIROBI)

CYNTHIA WAMBUI T/A

LAIBON VILLA AND GUEST HOUSE..............................TENANT/APPLICANT

VERSUS

TURITU SERVICE STATION LIMITED...........LANDLORD/1ST RESPONDENT

HFC LIMITED.......................................................LANDLORD/2ND RESPONDENT

SORTMASTERS INVESTMENTS LTD......ESTATE AGENT/3RD RESPONDENT

RULING

The 2nd Respondent/Landlord on 30th January 2020 filed a notice of preliminary objection to these proceedings on the following grounds:

a) That the orders issued by this honourable Tribunal on 1st October 2019 pursuant to the Tenant’s/Applicant’s application dated 29th September 2019 were unlawful.

b) That this Tribunal has no jurisdiction to issue these orders or hear this application. The Tenant/Applicant is not a protected Tenant within the confines of the laws. Reference is made to section 2 of Cap 301.

c) The application is inherently bad in law.

The hearing of the preliminary objection was directed to be determined by way of written submissions. Both the Applicant and the 2nd Respondent have filed their written submissions.

The 2nd Respondent’s Submissions may be summarized as follows:

i. That the Applicant does not legally exist as the proprietor of the business name “Laibon – Villa and Guest House” is one David Njuguna Ngoi.

ii. That the Applicant lacks legal capacity to institute these proceedings. She has no locus standi. Her application is scandalous and bad in law.

iii. That the Applicant has no authority from Laibon Villas and Guest House to swear the supporting affidavit on its behalf.

iv. That the Applicant has not placed any material before the Tribunal of a registered lease or evidence of payment of rent to the Landlord/Respondent. The Tribunal therefore, has no jurisdiction to hear and determine this dispute.

v. The Respondent has placed reliance on the cases of;

a) R –v- the Chairperson BPRT Nairobi HC Misc Application No. 1348 of 2015.

b) Pritam –Vs- Ratlal and another, Nairobi HCCC No 1499 of 1970 (1972) EA 560.

The Applicant’s Submissions in Response may be Summarized as Follows:

i. That a preliminary objection has to meet certain parameters defined by the law.

ii.That the Respondent’s preliminary objection is premised on an alleged lack of capacity by the Applicant to sue the Respondent.

iii.That the issue of capacity to sue, and therefore the jurisdiction of this Tribunal to hear this dispute cannot be legally addressed and concluded without presentation of evidence to that effect.

iv. That only pure points of law that are pleaded should be raised as preliminary matters.

v. That matters that require evidence to be proved should not be raised in preliminary objections.

vi. That the tenancy agreement referred to as the subject in the preliminary objection is between the Applicant/Tenant and the 1st Respondent/Landlord. The 2nd Respondent has been sued as the financier of the 1st Respondent. Therefore, only the 1st Respondent can rebut the tenancy between him and the Applicant.

vii. That the Applicant has a valid controlled tenancy lease and receipts to show payment of rent for the suit premises.

The reference by the Tenant is the one dated 25th September 2019. It is based on the assumption that the Applicant is the 1st Respondent’s Tenant. It is further premised on the basis that the 2nd and 3rd Respondents have not issued any notice to the Applicant to vacate.

The position taken by the Respondent is that the Applicant has no capacity to sue. That the Applicant has no nexus to or with Laibon Villa and Guest House since the Respondent has conducted a search and found out that the business name Laibon Villa and Guest House is under one David Njuguna Ngoi.

In order to determine whether or not the Applicant is the proper party to sue the Respondent, evidence would have to be led as to the nature of the registration of Laibon Villa & Guest House. It is not possible at this juncture to make any such findings with finality. In any case, on the face of the pleadings, the Applicant has brought these proceedings in her own name, Cynthia Wambui.

The legal capacity of the Applicant to bring these proceedings will undoubtedly invite evidence by way of affidavits or orally.

The Respondent also contends that the Applicant has not sought authority from Laibon Villa and Guest House to swear the affidavits on behalf of the Applicant. As I have observed, the nature of the registration of Laibon Villa and Guest House is not determinable at this juncture. Is it a limited liability company? Is it a mere business name? Is the authority to swear an affidavit on its behalf necessary and/or mandatory? I find all these matters to be matters of evidence.

The other contention by the Respondent is that there is no Tenant/Landlord relationship between the Applicant and the Landlord. again, in order to determine this issue, evidence would have to be adduced. The nature of the relationship between the Applicant and the 1st Respondent on one hand, and the 1st and 2nd Respondent on the other hand is a matter of evidence/proof. This is even more so when the 2nd Respondent contends in its submissions that;

“Cynthia Wambui, who declares herself the Applicant/Tenant in the matter, has not attached any piece of evidence to prove her relationship with Laibon Villa and Guest House.”

Where facts are contested and the preliminary objection is itself argumentative, it would be unsafe to summarily make determinations on the preliminary objections without testing the said objection against evidence for and against the objection.

In David Karobia Kiiru Vs Charles Nderitu Gitoi & Another [2018] eKLR AT PARAGRAPH 12, Justice Ohungo at paragraph 12 stated;

“For a preliminary objection to succeed, the following tests ought to be satisfied. Firstly, it should raise a point of law, secondly, it is argued on the assumption that all the facts pleaded by the other side are correct and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful dispose of the suit.”

I associate myself with the above findings of the learned Judge. I find that whether or not the Applicant has locus standi to bring this suit, and whether or not there exists a Landlord/Tenant relationship between the Applicant and the Respondent and whether or not the Applicant’s tenancy is a controlled one, ARE all matters of fact that require to be ascertained in this circumstances and for the foregoing reasons, the 2nd Respondent’s preliminary objection dated 30th January 2020 is hereby dismissed with costs to the Applicant.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Dated and delivered in open court this 17th day of March 2021 by HonA. Muma in the presence ofAnyango holding brief for Mille, 2nd Respondent, firm of Mwenda Njagi for the Applicant and Egesa for the 1st Respondent.

MargreteCourt Assistant

A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL