[2022] KEBPRT 754 (KLR)
The tribunal held that the issues raised in the notice of preliminary objection—namely, locus standi, res judicata, and alleged abuse of process—are not pure points of law but rather involve mixed questions of fact and law. Determining these issues would require the presentation and examination of evidence, either...
Source-derived case information.
- Citation
- [2022] KEBPRT 754 (KLR)
- Parties
- Applicant: Michelle Keah; Respondent: Jackeline Mulwan
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E006 of 2022
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the landlord/applicant
- Judges
- CN Mugambi
- Legal Topics
- Preliminary Objection, Locus Standi, Res Judicata, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michelle Keah
Applicant
Jackeline Mulwan
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the tenant amounts strictly to a preliminary objection in law.
- 2 Whether the applicant has locus standi to bring the suit on behalf of the landlady.
- 3 Whether the matter is res judicata due to a similar matter pending before the tribunal.
Ratio Decidendi
The tribunal held that the issues raised in the notice of preliminary objection—namely, locus standi, res judicata, and alleged abuse of process—are not pure points of law but rather involve mixed questions of fact and law. Determining these issues would require the presentation and examination of evidence, either orally or by affidavit. As such, the preliminary objection did not meet the legal threshold established in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors for what constitutes a proper preliminary objection. The tribunal therefore found the preliminary objection to be without merit and dismissed it with costs to the landlord/applicant.
Court Disposition
preliminary objection dismissed with costs to the landlord/applicant
Orders
- The notice of preliminary objection dated March 1, 2022 is dismissed with costs to the landlord/applicant.
Full Case Text
Judgment text and source record
22 paragraphs
Keah v Mulwan (Tribunal Case E006 of 2022) [2022] KEBPRT 754 (KLR) (Civ) (16 September 2022) (Ruling)
Neutral citation: [2022] KEBPRT 754 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Civil
Tribunal Case E006 of 2022
CN Mugambi, Chair
September 16, 2022
Between
Michelle Keah
Landlord
and
Jackeline Mulwan
Tenant
Ruling
1. The notice of preliminary objection by the tenant raises the following grounds against the landlord’s application dated January 12, 2022. a.That the applicant has no locus standi to bring this suit on behalf of the landlady.b.That this matter is res judicata because there is a similar matter pending in court being Tribunal case No E108 of 2021, Jackline Akoth Mulwan v Florence M Ambundo.c.That the said matter has been filed by the tenant against the landlady. The Tribunal case No E006 has been filed by the daughter of the landlady against the same tenant over the same issues.d.That this case is an abuse of the court process and the same ought to be dismissed with costs.
2. Does the preliminary objection raised by the Tenant, amount, strictly to what the law deems a preliminary objection? In the case of Mukisa Biscuits Manufacturing G Ltd v West End Distributors [1969] EA 696, the court stated;“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. The capacity of the Applicant in this suit to sue is a matter to be ascertained, evidence has to be led either orally or by way of affidavits to establish the same. Similarly, whether this matter is res judicata because there is similar matter pending before the Tribunal is a matter of evidence. The notice of preliminary objection on its own self cannot establish this fact.
4. Whether BPRT case No E108 of 2021 has been filed by the tenant herein against the landlady and whether the instant suit has been filed by the daughter of the landlady is a matter subject to proof.
5. The notice of preliminary objection filed herein raises issued of mixed fact and law and does not amount strictly to a preliminary objection. Various issues as highlighted above would have to be ascertained before the preliminary objection is determined.
6. I therefore find no merits in the notice of preliminary objection dated March 1, 2022 and the same is hereby dismissed with costs to the landlord/applicant.
HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 16th day of September, 2022 in the presence of Ms Atieno for the Landlord and in the absence of the Tenant and Counsel.HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNAL