[2025] KEBPRT 248 (KLR)

Kariuki & 11 others v Auctioneers & another (Tribunal Case E1270 of 2024) [2025] KEBPRT 248 (KLR) (10 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 248 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1270 of 2024

P Kitur, Member

April 10, 2025

Between

Joseph Kariuki & 11 others & 11 others

Applicant

and

Dikemwa Auctioneers

1st Respondent

Susan Ngina Ngugi

2nd Respondent

Ruling

1. The matter is coming up for a ruling on the Preliminary Objection dated 30th January 2025 filed by the Respondents. The preliminary objection was based on the grounds that:-a.The instant suit is res judicata as the same issues between the same Parties were determined in the Business Premises Rent Tribunal in Nairobi BPRT Case No. E1049 of 2023 by the orders issued therein, as such the entire suit offends the provisions of section 7 of the Civil Procedure Rules 2010 and ought to be struck out with costs to the Respondents.b.The Applicants have contravened the provisions of section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) on the grounds that the tribunal lacks jurisdiction to entertain the matter as the Applicants/Tenants are not within the controlled tenancy category as their tenancy over the subject property exceeds the period of five (5) year period upon which this tribunal has jurisdiction.c.The 1st Applicant is in contravention of Order 1 Rule 13(1) and (2) of the Civil Procedure Rules as he lacks authority to jointly and severally represent 2nd to 12th Applicants in the instant suit on the grounds that each Applicant have distinct and separate arrangement over their tenancy and may have separate interest/relief as such the suit is incompetent, bad in law thus fatally defective and ought to be dismissed with costs.d.The Applicants offends the provisions of section 19 of the Civil Procedure Act for wrongful institution of suit contrary to the rules prescribed by the Act.e.The Court lacks jurisdiction to entertain the Applicants as against the Respondents to that extent it is incompetent, bad in law, frivolous, vexatious, made in bad faith and otherwise an abuse of the Court process and ought to be dismissed forthwith with costs to the Respondents.

2. During the court session on 3rd March 2025, the Respondents informed the court of their intention to waive the 1st grounds of the Preliminary Objection and prosecute the rest. On the same day, the court gave direction to the parties in that the Preliminary Objection dated 30th January 2025 to proceed by way of written submissions to be filed within the times specified by the court to which the parties complied.

Issues For Determination 4. Upon a careful consideration of the Preliminary objection and submissions filed by the parties, the following issue arises for determination:i.Whether the Respondents’ Notice of Preliminary Objection dated 30th January 2025, is merited.

A. Analysis And Findings 5. In determining whether the Preliminary Objection dated 30th January 2025 meets the established legal threshold, it is crucial to first appreciate the definition and what constitutes of a Preliminary Objection in law.

6. In resolving this issue, I am guided by the well-established principles enunciated by the Court of Appeal in the seminal case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. In this decision, the court succinctly held that:“So far as I am aware, 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 parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

21. Additionally, in the decision of the Justice prof J.B. Ojwang J (as he then was) he succinctly addressed the issue of preliminary objection in the case of Oraro vs Mbaja [2005] eKLR:“... It is identified as, and declared to be the 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 that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”

22. From the foregoing, it is evident that for a Preliminary Objection to be sustained, it must satisfy the following strict legal criteria:i.It must raise a pure point of law;ii.It must be premised on the assumption that all facts pleaded by the opposing party are correct;iii.It cannot be sustained if the determination of facts is required or if the matter involves the exercise of judicial discretion.

24. Consequently, it is imperative to emphasize that a Preliminary Objection must be anchored on a well-settled and unequivocal point of law. Its application to undisputed facts must lead to only one inevitable conclusion—that the facts presented are legally incompatible with the point of law raised.

25. In the instant matter, the Respondents maintain that the Applicant lacks the requisite authority to institute this suit and act on behalf of the 2nd to the 12th Tenants.

26. To this end, it is imperative to consider the provision of Order 1 Rule 13 of the Civil Procedure Rules which states as follows with respect to the appearance of one of several plaintiffs or defendants for others(1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case.

24. I have looked at the pleadings filed by the Tenants and specifically the document with no heading with the first line reading ‘Dated 15th November 2024’.

25. While the said document appears to have been executed by parties whose names are as listed, the document as is does not meet the threshold to be termed as a document authorising any one of them to appear, plead or act for any other tenants. It is merely a sheet of paper, properly dated and appears duly signed but communicates nothing beyond the signing.

26. In this regard, I find guidance in the case of John Kariuki & 347 Others –versus- John Mungai Njoroge & 8 others Nakuru HCCC No. 152 of 2003, where Justice L. Kimaru stated as follows: -“The plain reading of the above rule (Order 1 rule 12 Civil Procedure rules) is that where a party requires another party to appear, plead, or act on his behalf he has to give the authority in writing before such a person filing suit can claim to be representing such person. The said written authority has to be signed by the person giving the authority and must be filed in court where the suit is to be filed. The mischief that the said rule was meant to address, in my humble view, is to prevent a situation where a party may become bound by a court decision without his having any knowledge of the suit that led to the said decision. The court can envisage a scenario, where, lets say, after the dismissal of a suit, such a plaintiff whose name has been included declines to settle the costs on the pretext that he did not authorise the suit to be filed in his name. In my considered view, this requirement is mandatory. A party cannot be condemned or enjoy a benefit from a court process without his say so.”

24. That finding similarly applies here. The document signed by the persons listed does not state what the purpose for the execution by those persons is, it does not authorise any one of them to appear, plead or act for any others. In the absence of such authority, the 1st Tenant cannot purport to act on behalf of any of the others. In purporting to do so, without their authority, it is my considered view that the very foundation of the case was on shaky ground rendering the entire suit incompetent.

29. In the circumstances as enumerated above, it is, therefore, abundantly clear that the Preliminary Objection is well-founded, and succeeds.

B. Orders 29. In light of the foregoing analysis, I accordingly make the following orders:a.The Preliminary Objection dated 30th January 2025 is merited.b.The suit is hereby struck out in its entirety.c.Costs are awarded to the Landlord assessed at Kshs. 20,000/=.d.File is marked as closed.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 10TH DAY OF APRIL 2025in the presence of Gachara for the Tenants and in the absence of the Respondents.