https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3926

Haji v Antari Ltd & another (Land Case E579 of 2025) [2026] KEELC 3926 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 3926 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E579 of 2025 CG Mbogo, J June 29, 2026 Between Ismail Abdiwahid Haji Plaintiff and Antari Limited 1st Defendant Troy Thuo Muraya 2nd Defendant Ruling 1.The defendants filed the notice of preliminary objection dated 8th December, 2025 challenging the application and plaint on the following grounds:-i.By virtue of Sections 2(1) and 11 of the Landlords and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301 of the Laws of Kenya, this court lacks jurisdiction to determine this dispute as it falls within the jurisdiction of the Tribunal contemplated under Cap 301; andii.This court lacks original jurisdiction to hear this suit on account of the fact that by virtue of the provisions of Section 15 of the Landlords and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301, this court is clothed with appellate jurisdiction in respect of disputes relating to controlled tenancies as it was held in the case of Kaka Mohamed v Mohamed Ali [2018] KEELC 183 (KLR). 2.The notice of preliminary objection was canvassed through written submissions. The defendants filed their written submissions dated 8th December, 2025. The plaintiff filed his written submissions dated 3rd February, 2026. I have considered the preliminary objection and the written submissions filed by the parties herein. The issue for determination is whether this court has jurisdiction to hear and determine this suit. 3.Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows:-“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 4.Also, the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that:-“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.” 5.From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial and lastly, the same ought to stem from and not outside of pleadings. 6.The defendants challenge the jurisdiction of this court to hear and determine this suit. This is an issue that must first be dealt with since without jurisdiction, the court cannot proceed any further. In Owners of the Motor Vessel Lillian “S” v. Caltex Oil Kenya Limited [1989] KECA 48 (KLR) the Court of Appeal held that:-“...Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction...” 7.To determine whether this court has jurisdiction, the court will confine itself to the pleadings and nothing outside of that. The plaintiff filed the plaint dated 12th November, 2025 seeking the following orders:-a.Specific performance of the lease agreement dated 8th November, 2025.b.This honourable court be pleased to grant a permanent injunction order, restraining the 1st and 2nd defendants, their agents, servants, employees or any person acting under their instruction over Unit C erected on LR No./1/561/C situated within Kilimani along tigoni road, Nairobi city county, from any form of dealings with third parties during the pendency of the lease agreement dated 8th November, 2025.c.Cost of this suit. 8.The gist of the plaint is that the parties entered into a valid lease agreement dated 8th November, 2025 over unit C erected on LR No./1/561/C situated within Kilimani. The plaintiff pleaded that it complied with the terms of the agreement and took possession of the premises on 10th November, 2025. Thereafter, and without any provocation, on 12th November, 2025, the defendants hired goons to assault and remove the plaintiff from the premises. 9.The defendants filed their statement of defence dated 8th December, 2025. The defendants denied the allegations and maintained that they are not in breach of any provision of the lease agreement. The defendants pleaded particulars of misrepresentation and more importantly opposed the jurisdiction of this court. 10.In their submissions, the defendants argued that this court has no jurisdiction to entertain this suit for the reason that it is premised on the tenancy between the parties thus falling within the confines of the business premises rent tribunal. The defendants relied on the cases of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Others [2012] eKLR and Kaka Mohamed v Mohamed Ali [2018] KEELC 183 (KLR). 11.The defendants submitted that the lease is express that it is for a term of five years and contains an express provision for termination prior to the lapse of the five years by way of written notice. On the other hand, the plaintiff argued that the defendants terminated the lease and granted possession to another tenant thus depriving the business premises rent tribunal jurisdiction. That on 12th November 2025, there was no landlord/tenant relationship between the parties capable of referring the matter to the business premises rent tribunal. 12.While relying on the case of Hassan Ali Joho & Another v Suleiman Said Shabal & 2 Others [2014] eKLR, the plaintiff further submitted that the facts as pleaded are precise that there exists a role for the court to determine whether there was a relationship between the parties that is capable of adjudication under Section 12 of Cap 301. 13.The defendants’ contention that the court lacks jurisdiction is premised on the lease agreement dated 8th November, 2025. The plaint as drafted does not disclose the specified terms of the lease agreement that would oust the jurisdiction of this court. What is evident is that the defendants are inviting this court to comb through the lease agreement which is evidence to confirm whether indeed this court has jurisdiction. 14.On this basis, the preliminary objection automatically becomes defeated, and the lack of jurisdiction as argued by the defendant no longer becomes a pure point of law. In addition, the facts are disputed by the parties as is seen from the statement of defence. For the court to establish whether indeed a landlord/tenant relationship existed, there is need for a hearing and the same cannot be determined in a preliminary objection. 15.From the above, it is my finding that the notice of preliminary objection dated 8th December, 2025 does not raise a pure point of law, and it lacks merit. The same is hereby dismissed with costs to the plaintiff.Orders accordingly. DATED, SIGNED & DELIVERED VIRTUALLY THIS 29TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE29/06/2026.In the presence of:Ms. Benson Agunga - Court assistantMr. Jonathan Kisia for the DefendantMs. Karongo holding brief for Mr. Gitau for the Plaintiff