[2025] KEBPRT 222 (KLR)

Kiptoo v North Eastern Investment Limited & another (Tribunal Case E1424 of 2024) [2025] KEBPRT 222 (KLR) (4 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 222 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1424 of 2024

J Osodo, Chair & Gakuhi Chege, Member

April 4, 2025

Between

Manase Kiptoo

Tenant

and

North Eastern Investment Limited

Landlord

and

NW Realite

Agent

Ruling

A. Dispute Background 1. The respondents filed a Notice of Preliminary Objection dated 27th January 2025 based on the following grounds;i.That section 11 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act establishes this Tribunal and Section 12 provides for its jurisdiction; hence it does not have jurisdiction over this matter.ii.That the lease over the demised premises is for a term exceeding 5 Years, has been reduced to writing and does not contain a termination clause apart from breach of covenant, hence it is not a controlled tenancy.iii.That this Tribunal has no jurisdiction to entertain matters regarding uncontrolled tenancies such as this one.iv.That the application is fatally defective in substance and in form, is incompetent, lack merit and the orders sought are unenforceable and against the Law.

2. Both parties filed their written submissions in respect to the Notice of Preliminary Objection with the respondent filing theirs dated 10th March 2025 and the tenant filing his dated 28th March 2025. We shall consider both submissions as we deal with the issues raised in the notice of Preliminary Objection.

B. Analysis and Determination 3. The test of what constitutes a Preliminary Objection was settled in the locus classicus case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 where it was stated as follows:“----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”.In the same case, Sir Charles Newbold, P. 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”.

4. In the instant case we have perused the grounds listed by the landlord in the Notice of Preliminary Objection and we note that the respondent submits that this court lacks the jurisdiction to hear this matter or grant the orders sought as the parties herein have a written lease agreement for a period of 6 years which is in excess of the stipulated 5 years.

5. The tenant on the other hand submits that there exists a landlord/tenant relationship between the parties and that this fact gives him the right to invoke the avenues provided by the Act (Cap 301) to obtain remedies against the respondents’ exploitation and harassment.

6. The tribunal has perused the lease agreement signed by the 2nd respondent and the tenant/applicant dated 2nd December 2022 and finds that the said lease agreement would run for a period of 6 years and has no termination clause thereby making it an uncontrolled tenancy.

7. Section 2(1) of Cap 301 laws of Kenya 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:”

8. In view of the foregoing provision of the applicable law, it is clear that where a tenancy has been reduced into writing and is for a period of more than 5 years, and has no termination clause, this tribunal would not have jurisdiction to hear and determine any dispute arising therefrom.

C. Orders 9. In view of the foregoing, the following final orders commend to us; -a.The Notice of preliminary Objection dated 27th January 2025 is hereby upheld.b.The application and reference dated 31st December 2024 are hereby dismissed with costs for want of jurisdiction.c.Costs of KES. 30,000 to the respondents.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY of APRIL 2025. HON. JOYCE AKINYI OSODO - PANEL CHAIRPERSON - BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE -MEMBER - BUSINESS PREMISES RENT TRIBUNALIn the presence of:-Mr Njehia h/b for Mr Gitahi for LandlordWambui h/b for Mr. Mburu for Tenant