[2025] KEBPRT 251 (KLR)

Kiplelei Limited v Silas Kandie t/a Chesirwo Agencies (Tribunal Case E013 of 2025) [2025] KEBPRT 251 (KLR) (23 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 251 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E013 of 2025

P Kitur, Member

April 23, 2025

Between

Kiplelei Limited

Applicant

and

Silas Kandie t/a Chesirwo Agencies

Respondent

Ruling

A. Parties 1. The Landlord is the registered proprietor of land known as Title Number Eldoret Municipality/Block 7/199, upon which it has developed a commercial building identified as Barng’etuny Plaza (hereinafter referred to as “the suit premises”).

2. The Landlord is represented in this matter by the firm of Mburu Maina & Company Advocates LLP.

3. The Tenant operates a commercial enterprise within the said suit premises.

4. The Tenant is represented by the firm of Mukabane & Kagunza Advocates LLP

B. The Dispute Background 5. The instant proceedings were initiated by the Landlord through filing a Complaint and an Application dated 31st January 2025, seeking, inter alia, eviction orders against the Tenant and leave to levy distress for outstanding rent arrears.

6. The Landlord contends that the Tenant has been in breach of the tenancy agreement by failing to remit rent payments since January 2024, thereby accruing arrears amounting to Kshs. 240,400/=.

7. Furthermore, the Landlord avers that it issued a Termination Notice to the Tenant, which did not elicit any objection. Despite the lapse of the notice period, the Tenant has continued to occupy the premises without any lawful or justifiable cause.

8. In response, the Tenant filed a Notice of Preliminary Objection dated 17th February 2025 on the following ground:-a.That the Landlord’s Notice of Motion dated 31st January 2025 and the Landlord’s entire suit is improperly before this Honourable court whose jurisdiction had been statutorily divested.

9. The Tribunal directed the parties to canvass the Preliminary Objection by way of written submissions, which were duly filed. Accordingly, what falls for determination is the Tenant’s Preliminary Objection dated 17th February 2025.

C. List of Issues for Determination 10. I have analysed and reviewed the documents before me, and it is my view that the following issue crystallizes for determination;-Whether the Preliminary Objection dated 17th February 2025 is merited.

D. Analysis and Findings 11. To begin with, it is imperative to set out the legal foundation and parameters of what constitutes a valid Preliminary Objection.

12. The guiding principles are well-articulated in the locus classicus of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, wherein Law, JA succinctly held“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.”

13. Additionally, at page 701 of the judgment, Sir Charles Newbold, P, underscored the importance of properly raising Preliminary Objections, stating as follows:“…… the first matter related to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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 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 points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse issues. This improper practice should stop."

14. Consequently, for a Preliminary Objection to be properly sustainable, it must meet the following threshold: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.

15. The tenant herein filed The Preliminary Objection dated 17th February 2025, which from my analysis essentially questions the jurisdiction of the tribunal to hear and determine the matter.

16. Upon careful consideration, I find that the said Preliminary Objection satisfies the established criteria as set out above, and is thus properly before this Tribunal.

17. Having said that, this tribunal now embarks on the journey to determine whether it is clothed with jurisdiction to handle the complaint at hand filed by the Landlord.

18. Jurisdiction, being foundational, must be determined at the earliest opportunity. In this regard, I draw guidance from the case of Republic v Business Premises Rent Tribunal & Another Ex-Parte Albert Kigera Karume [2015] eKLR, which cited with approval the decision in Re Hebtulla Properties Ltd [1979] KLR 96. The Court therein stated:-“The Tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied... The powers of the Tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the Tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n)…… It would be erroneous to think that section 12(4) confers on the Tribunal any extra jurisdiction to that given by and under the Act elsewhere…Section 12(4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the Tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy…. The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”.

19. Section 12 (1) (e) grants the tribunal powers to;-“make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy.”

20. Moreover, Section 12(4) provides;-“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit.”

21. The Tenant argues that the tenancy ceased to exist upon expiry of the Termination Notice on 1st December 2024, and therefore, there is no controlled tenancy upon which the Tribunal can exercise jurisdiction.

22. However, it is crucial to note that Under Section 2, the Act defines a Controlled tenancy as follows:“controlled tenancy" means a tenancy of a shop, hotel or catering establishment—(a)which has not been reduced into writing; or(b)which has been reduced into writing and which—(i)is for a period not exceeding five years; or(ii)contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or(iii)relates to premises of a class specified under subsection (2) of this section

23. From the foregoing, it is trite that a controlled tenancy need not be in writing. It may also arise by implication from conduct or oral arrangements. The continued occupation by the Tenant even after the lapse of the termination notice signals the subsistence of a monthly tenancy, which automatically is deemed to be a controlled tenancy.

24. This position is further reinforced by the Tenant’s own averments in the Replying Affidavit dated 19th March 2025, wherein he acknowledges that rent payments have consistently been made via Mpesa till number and through cash deposits. This admission, in itself, is sufficient evidence of the existence of a landlord-tenant relationship.

25. Accordingly, and guided by the statutory provisions and judicial authorities discussed above, I find that the tenancy subsisting between the parties falls within the ambit of a controlled tenancy as defined under Section 2(1) of the Act.

26. In light of this relationship, the Tribunal is duly empowered, pursuant to Section 12(4) of the Act to inquire into and determine the Complaint lodged by the Landlord on 31st January 2025. Consequently, the Tribunal is properly seized of the jurisdiction to hear and determine the matter.

27. In this regard, I find reinforcement in the persuasive authority of Al-Riaz International Limited v Ganjoni Properties Ltd [2015] eKLR, where the Court held;“In my view, the provisions of section 2 of Cap 301 are clear. That if a tenancy satisfied any of the conditions provided at section 2, the tenancy automatically becomes a controlled one and subject to the provisions of Cap 301…”

D. Orders 23. In light of the foregoing analysis and findings, this make the following orders:i.The Tenant’s Preliminary Objection datedFebruary 17, 2025 is without merit and is dismissed.ii.The Tribunal affirms its jurisdiction to hear and determine the Landlord’s substantive Complaint.iii.Costs shall be in the cause.iv.Mention onMay 14, 2025.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. Kitur this 23rd day of April 2025 in the presence of Ms. Terer holding brief for Langat for the Landlord and Kagunza for the Tenant.