[2021] KEBPRT 354 (KLR)
The Tribunal found that the respondents failed to provide evidence that the tenant had vacated the premises, and the applicant's affidavit and annexed photographs supported continued possession. The Tribunal held that the preliminary objection was based on disputed facts, specifically whether the tenant had vacated,...
Source-derived case information.
- Citation
- [2021] KEBPRT 354 (KLR)
- Parties
- Applicant: Daniel Waweru Wanjiku; Respondent: Josephine Wairimu Nyaga; Respondent: Josphat Mbugua Njuguna
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 330 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; application to proceed to hearing on merits
- Legal Topics
- Landlord Tenant Disputes, Jurisdiction of Tribunal, Preliminary Objection, Possession of Premises
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Waweru Wanjiku
Applicant
Josephine Wairimu Nyaga
Respondent
Josphat Mbugua Njuguna
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Tribunal has jurisdiction to hear the tenant's application given the respondent's claim that the tenant vacated the premises.
- 2 Whether the preliminary objection raised by the respondents meets the legal threshold for a preliminary objection.
Ratio Decidendi
The Tribunal found that the respondents failed to provide evidence that the tenant had vacated the premises, and the applicant's affidavit and annexed photographs supported continued possession. The Tribunal held that the preliminary objection was based on disputed facts, specifically whether the tenant had vacated, which is not suitable for determination as a preliminary objection. Applying the principles from Mukisa Biscuits and Oraro v Mbaja, the Tribunal concluded that the objection did not raise a pure point of law and therefore dismissed it with costs to the applicant. The application would proceed to be heard on its merits.
Court Disposition
preliminary objection dismissed; application to proceed to hearing on merits
Orders
- The preliminary objection dated 30th April 2021 is dismissed with costs to the tenant/applicant.
- The application dated 29th March 2021 shall be set down for hearing on merits.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 330 OF 2021 (NAIROBI)
DANIEL WAWERU WANJIKU.................................TENANT/APPLICANT
VERSUS
JOSEPHINE WAIRIMU NYAGA.............1STLANDLORD/RESPONDENT
JOSPHAT MBUGUA NJUGUNA....................2ND RESPONDENT/AGENT
RULING
1. The Tenant/Applicant moved this Tribunal through a motion dated 29th March 2021 seeking restraining orders against the Respondents from interfering with his quiet enjoyment of the premises where “Shaffie Carwash” is situated within Kiserian Town in Kajiado County pending the hearing and determination of the suit herein.
2. The application is supported by the tenant’s affidavit sworn on 29th March 2021 in which he deposes that he has been a tenant of the Respondent since 19th May 2020 paying a monthly rent of Kshs.9000/-.
3. On or about 20th March 2021, the Respondents blocked the gate denying the Tenant access to the said premises without his consent and/or knowledge.
4. It is the Applicant’s case that the Respondents’ have threatened him with eviction, disconnecting electricity, water and destroying his water tanks thereby necessitating filing of this suit.
5. By a notice of preliminary objection dated 30th April 2021, the Respondents oppose the said application stating that the Tribunal is devoid of jurisdiction as the tenant vacated and surrendered the premises in mid March 2021 and has not sought reinstatement.
6. Secondly, the Respondents contend that the order issued by the Tribunal on the 20th April 2021 is overtaken by events and is incapable of being enforced.
7. Jurisdiction is a threshold issue and must be determined by a Judge at the threshold stage using such evidence as may be placed before him by the parties (see the Owners and master of theMotor Vessel “JOEY” and The Owners and Master of Motor tugs “Barbara” and “Steve B” (2007) eKLR.
8. The Respondents did not place evidence on record to show that indeed, the Tenant vacated the premises voluntarily thereby ousting this tribunal’s Jurisdiction.
9. It is inconceivable that a tenant would vacate a premises and then rush to court to stop his eviction as contended by the Respondents.
10. I have looked at the photographs annexed to the supporting affidavit and I am convinced that the Tenant is still in possession of the suit premises.
11. I find and hold that the preliminary objection does not pass the test set out in the Locus Classicus case of Mukisa Biscuits Manufacturing Co. Ltd – vs- West End Distributors Ltd (1969) EA 696 at page 701 where it was held as follows:-
“ A preliminary objection is in the nature of a demurer. It raises a pure 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. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of Judicial discretion”.
12. In the case of Oraro – vs- Mbaja (2005) eKLR at page 418 it was held as follows:
“As already remarked, anything that purports to be a preliminary objection must not deal with disputed facts, and must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence”.
13. In the premises, the preliminary objection dated 30th April 2021 is hereby dismissed with costs to the Tenant/Applicant.
14. The Application dated 29th March 2021 shall be set down for hearing on merits.
It is so ordered.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 16TH DAY OF AUGUST 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Miss Mwongeli holding brief for Mwiti for Respondent
David Waweru Applicant/Tenant present in person
Further order:
1. Mention on 10th September 2021 to take directions on disposal.
2. Respondent is granted 14 days to file and serve response to the application.
3. Applicant is granted 14 days to file and serve further affidavit if need be.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
16/8/2021