[2022] KEBPRT 1085 (KLR)

Jillani v Kenya Police Service (Tribunal Case E235 of 2022) [2022] KEBPRT 1085 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 1085 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E235 of 2022

CN Mugambi, Chair

December 15, 2022

Between

Jannet Wairimu Jillani

Tenant

and

Kenya Police Service

Landlord

Ruling

1. The Respondent’s notice of preliminary objection dated 19. 4.2022 is brought on the grounds;-a.That the claim against the landlord offends Article 50(4) of theConstitution of Kenya 2010 in a manner that it tenders evidence (canteen agreement dated 11th January 2022) which is illegally obtained and violates the landlord’s rights on fundamental freedom in the Bill of Rights and renders this trial unfair.b.That the claim against the landlord offends Article 31(d) of the Constitution of Kenya 2010 in a manner that infringes the landlord’s privacy of its communications.c.That the tenant’s application is detrimental to the administration of justice as it relies on an agreement not signed by the landlord to bind the landlord and obtain orders against it.d.That the temporary orders issued herein are detrimental to the administration of justice as they were obtained on misleading facts given by the tenant and the tenant’s application is not founded on a substantive claim.e.That the Tenant’s application is an attempt to mislead the Tribunal as it relies on a non- existent agreement which was a smoke screen to mislead the court from addressing the rent controversy i.e that the tenant had lost on the bid for provision of canteen services at the Lan’gata police station.f.The only issue I have to determine in this preliminary objection is whether it is merited or not.

2. In the case of; Mukisa Biscuit Company vs Westend Distributors Ltd (1969) EA 696, the court held;“a preliminary objection consists of a 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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.”And further;“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue and this improper practice should stop.”

3. In the case of; Oraro vs Mbaja (2005) eKLR, the court held;-“I think the principle is abundantly clear. A preliminary objection correctly understood is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested- and in any event to be proved through the processes of evidence.Any assertion which claims to be a preliminary objection and yet it bears factual aspects, calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement with learned counsel Mr. Ougo that when a court needs to investigate facts, a matter cannot be raised as a preliminary objection.”

4. Are there matters to be ascertained in the preliminary objection raised by the Respondent? I think so. I think it is a matter to be ascertained by way of evidence whether the canteen agreement dated 11th January 2022 and which the tenant places reliance on was obtained illegally and whether or not it violates the rights of the Respondent to a fair trial is a matter of fact to be demonstrated and established by way of evidence. Whether or not the claim against the Respondent infringes the Respondent’s communication rights is also a matter of fact to be established by way of evidence.

5. All the other grounds raised by the Respondent are controversial and cannot be determined summarily as preliminary points. At ground No. (d) for example, the Respondent states that the orders herein were obtained based on misleading facts given by the tenant. To establish whether or not the said facts leading to the issuance of the orders were indeed misleading, evidence would have to be tendered and considered.

6. I am in these circumstances of the considered view that the Respondent’s preliminary objection as framed does not meet the legal requirements and definition of a preliminary objection and the same is hereby dismissed with costs to the Applicant/Tenant.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF DECEMBER 2022HON. CYPRIAN MUGAMBI - CHAIRPERSON15. 12. 2022In the presence of;Mr. Kimuma for Mugo for the tenantMiss Mumbi for the landlord