[2022] KEBPRT 15 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E033 OF 2021 (NYERI)

JOHN BAPTISTA KAGURU GACUCU.............................TENANT/APPLICANT

VERSUS

WILFRED WAMBARI NYAGA.........................LANDLORD/1ST RESPONDENT

MARTIN MWANGI NYAGA.............................LANDLORD/2ND RESPONDENT

RULING

1. The 2nd Respondent’s notice of preliminary objection dated 26th October 2021 is in the following terms;

a. That this honourable Tribunal is not vested with the jurisdiction to conduct this matter as such the application dated 23rd September 2021 is a nonstarter, incurably bad in law and an abuse of the court process.

b. That the application is scandalous, frivolous or vexatious.

2. The Applicant’s application dated 23rd September 2021 seeks orders compelling the Respondents to open the suit premises in default of which the Applicant be allowed to break into the same. The application also seeks orders restraining the Respondents from in any manner interfering with the Tenant’s tenancy. The affidavit in support of the application states that the Respondents locked the Applicant’s business premises when the Applicant had paid up his rent up to March 2022 and was in no rent arrears.

3. In opposing the application, the Respondents state that the Tenant/Applicant surrendered the suit premises in August 2021 owing to inability to pay rent arrears then amounting to Kshs 44,550/-. The Respondent has further stated that there did not exist a Landlord/Tenant relationship between the parties herein at the time this matter was filed. The affidavit also denies that the Tenant carried out any developments on the suit premises.

4. From a cursory reading of the parties’ affidavits it is clear that the following facts are contested;

a. Whether the Applicant surrendered the suit premises.

b. Whether the Tenant has indeed paid up his rent up toMarch 2022.

c. Whether the Tenant is in rent arrears.

d. Who is in occupation and use of the suit premises.

e. Whether the suit premises have indeed been let out to a third party.

5. In order to determine the above contested facts, the Tribunal would have to hear parties and consider evidence, whether oral or written. The Tribunal would have to ascertain the contested facts. A preliminary objection ought to raise 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 (see the case of Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd ([1969] EA 696.

6. In the case of Oraro Vs Mbaja [2005] eKLR Justice Ojwang stated;

“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 ascertain that 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 “where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”

7. I am in agreement and guided by the above statement of the Learned Judge laying down the law on what amounts to a preliminary objection and in the circumstances of this case earlier set out in this ruling, do hereby find that the notice of preliminary objection herein does not meet the legal threshold of a preliminary objection and the same is hereby dismissed with costs to the Applicant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. MAY (VICE CHAIR) THIS 24TH FEBRUARY 2022 IN THE ABSENCE OF THE PARTIES.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL