[2020] KEBPRT 63 (KLR)
The Tribunal held that the destruction of the premises by fire does not, by itself, terminate the tenancy. The law, specifically Cap 301, provides that in such circumstances, the liability to pay rent is suspended until the premises are made habitable again. Whether the premises can be restored to a tenantable...
Source-derived case information.
- Citation
- [2020] KEBPRT 63 (KLR)
- Parties
- Applicant: James Njuguna Nambura; Applicant: Lawrence Wanjohi Thigiti; Respondent: Geoffrey Kamau Waweru; Respondent: Peter Kabui Kamau; Respondent: David Kinyanjui Kamau
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 56 of 2018
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Business Premises Tenancy, Termination of Tenancy, Jurisdiction of Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Njuguna Nambura
Applicant
Lawrence Wanjohi Thigiti
Applicant
Geoffrey Kamau Waweru
Respondent
Peter Kabui Kamau
Respondent
David Kinyanjui Kamau
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the destruction of the suit premises by fire terminates the tenancy agreement.
- 2 Whether the Tribunal retains jurisdiction after the premises have been destroyed by fire.
Ratio Decidendi
The Tribunal held that the destruction of the premises by fire does not, by itself, terminate the tenancy. The law, specifically Cap 301, provides that in such circumstances, the liability to pay rent is suspended until the premises are made habitable again. Whether the premises can be restored to a tenantable condition is a matter of evidence, not a pure point of law suitable for determination by preliminary objection. Therefore, the preliminary objection, which was based on the assertion that the Tribunal lacked jurisdiction due to the destruction of the premises, was without merit and was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The 1st Respondent/Landlord’s preliminary objection dated 18th September 2018 is hereby dismissed.
- The costs of the preliminary objection shall abide the outcome of the application dated 31st July 2018.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 56 OF 2018 (KIAMBU)
JAMES NJUGUNA NAMBURA...............................TENANT/1ST APPLICANT
LAWRENCE WANJOHI THIGITI..........................TENANT/2ND APPLICANT
VERSUS
GEOFFREY KAMAU WAWERU...................LANDLORD/1ST RESPONDENT
PETER KABUI KAMAU...............................HEAD-LANDLORD/2ND TENANT
DAVID KINYANJUI KAMAU............HEAD-LANDLORD/3RD RESPONDENT
RULING
The subject matter of this ruling is the 1st Respondent/Landlord’s preliminary objection dated 18th September 2018. The Tenant/Applicant filed grounds of opposition to the preliminary objection on 25th September 2018.
The advocates of the parties have made oral submissions in respect of the preliminary objection which are on record. The 1st Respondent/Landlord’s preliminary objection is supported by the advocate for the2nd and 3rd Respondents. The law in respect of a preliminary objection is more or less settled. A preliminary objection must be based on admitted facts and not facts which require evidence to be taken or to be investigated by the Tribunal (Mukisa Biscuit Case 1969 EA 696).
The parties to the application before the Tribunal agreed on the following facts;
1. That the suit premises has been destroyed by fire and does not exist.
2. What the parties do not agree on is the effect of the destruction of the said premises on the issue of the jurisdiction of the Tribunal.
The Tribunal does not find it difficult to resolve the issue. In the terms and conditions to be implied in tenancies at page 15 of Cap 301 condition (ii) provides as hereunder;
“That where the premises are destroyed by fire and civil commotion or accident through no negligence on the part of the lessee, any liability to pay rent be suspended until the premises are again made fit and habitable.”
It is clear from the above that destruction of premises by fire does not terminate a tenancy. Whether the premises can be made tenantable again is an issue of evidence and not pure law.
In the light of the above facts, the 1st Respondent/Landlord’s preliminary objection dated 18th September 2018 has no merits. The Tribunal makes the following orders;
1. The 1st Respondent/Landlord’s preliminary objection dated 18th September 2018 is hereby dismissed.
2. The costs of the preliminary objection shall abide the outcome of the application dated 31st July 2018.
3. The Tenant/Applicant shall fix the hearing date of the application dated 31st July 2018at the registry on priority basis.
Ruling dated and delivered this 12th day of June 2020 in the presence of Kimani for the Tenant/Applicant. Advocate for the Respondent absent.
MBICHI MBOROKI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL