[2021] KEBPRT 392 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E074 OF 2021 (NAI ROBI)

GENERAL KIRANKI................................................TENANT/APPLICANT

VERSUS

REIGMAN CONSULT LTD............................LANDLORD/RESPONDENT

FOSTINE MULOZY...................................................INTERESTED PARTY

RULING

The Landlord/Respondent’s notice of preliminary objection has the following objections;

1. The Defendant contends that there is no longer a Tenant/Landlord relationship in existence between the parties herein.

2. That this honourable Tribunal having recognized a new Tenant on the suit property lacks the jurisdiction to rule on the subject of a tenancy that no longer exists.

Counsel for the parties argued the preliminary objection orally on 16th June 2021.

The submissions of counsel for the Respondent may be summarized as follows;

1. The essence of the preliminary objection is that there is an interested party.

2. The Tribunal has recognized the interested party as being interested in the suit property as a Tenant.

3. The remedy being sought by the Applicant being injunctive in nature, the Tribunal lacks jurisdiction to issue the same.

4. Counsel relied on the cases of Narshidas & Co Ltd Vs Nyali Air Conditioning and Ventilation, Kaledonia Supermarkets Vs Knec and Tiwi Beach Hotel Vs Olrike in support of her submissions that the Tribunal has no jurisdiction to issue orders of injunction.

5. That paragraph 2 of the Applicant’s amended motion is in essence and nature injunctive.

The submissions of counsel for the Tenant/Applicant in response may be summarized as follows;

1. That the Tribunal has not made a finding that there is a new Tenant.

2. The amended application does not take any injunctive orders.

3. A preliminary objection should be on pure points of law.

4. That the Respondents are trying to force a tenancy which is an issue of evidence.

5. That the Applicant has sought a finding that there exists a controlled tenancy between the Applicant and the Respondent.

6. The Interested Party was admitted as an interested party and not as a Tenant.

At the very outset, it is important to point out that the fact that prayer 2 of the application dated 30th May 2021 was granted, enjoining Fostine Mulozy as an interested party did not resolve the issue as to who is the proper Tenant on the suit premises as between the Applicant herein and the interested party. It did not resolve the issue as to who is in actual possession, occupation and use of the demised premises. There are contested matters which can only be determined after consideration of available evidence and not by way of a preliminary objection.

Similarly, whether or not there is a tenancy in existence between the Applicant and the Respondent is an issue of evidence to be determined upon the hearing of the application by the Applicant. Where issues of fact need to be established, a preliminary objection would not suffice. A preliminary objection ought to raise pure points of law.

The only issue to be determined is whether the Tribunal has jurisdiction to issue injunctive reliefs. This issue was settled by Hon Justice G.V Odinga in the case of R Vs BPRT & another ex-parte Albert Kigera Karume where he stated as follows;

In terms of Article 169 (1)(d) of the Constitution;

1. The subordinate courts are;

(a) The Magistrate courts are;

(b) The Kadhi’s courts

(c) The Courts Martial and

(d) Any other court or local Tribunal as may be established by an Act of Parliament other than the Courts established as required by Article 162(2).

(e) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).

It is therefore clear that the jurisdiction of the subordinate court can be limited by an Act of Parliament. To that extent, it is incorrect as contended by the interested party that the Tribunal necessarily has the same powers as the magistrates’ court.

However, here the powers of the Tribunal have not been limited by a statute, it is my view that there is nothing to present the Tribunal from exercising the powers conferred on the subordinate courts such as the Magistrate’s. Section 63(e) of the Civil Procedure Act provides;

In order to prevent the ends of justice from being defeated, the court may, if it is as prescribed;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold.

The court under section 2 of the said Act is expressed to mean the “High Court or a subordinate court acting in the exercise of its civil jurisdiction.”.

These provisions when read together clearly supports the view that under the current constitutional dispensation in the absence of express limitation of the jurisdiction of the Tribunal, the Business Rent Tribunal is clothed with the jurisdiction to grant temporarily injunctions.

It is therefore my view and I so hold that until Parliament enacts legislation limiting or restricting the powers of the Tribunal, the Tribunal has the powers to grant orders prescribed under section 63(c) of the Civil Procedure Act including orders of temporary injunction.

I am guided by the above holding of the honourable judge and I fully associate myself with the said holding.

That said, the Respondent’s notice of preliminary objection dated 10th June 2021 is hereby dismissed with costs to the Applicant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING READ AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 4TH DAY OF AUGUST, 2021in the presence of Mr Muriithi Kimathifor the Tenant and in the absence of Kioi & Co Advocates for the Respondentand Interested Party.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL