[2025] KEBPRT 271 (KLR)

Maracha & another v Waithanji & 5 others (Tribunal Case E143 of 2024) [2025] KEBPRT 271 (KLR) (30 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 271 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E143 of 2024

N Wahome, Chair & Joyce Murigi, Member

April 30, 2025

Between

Thuku James Maracha

1st Applicant

Catherine Wambui Kariuki

2nd Applicant

and

Wilson Waithanji

1st Respondent

Mwaura Muiru

2nd Respondent

Francis Njuguna

3rd Respondent

Maracha Thuku

4th Respondent

Peter Thuku

5th Respondent

Grace Wanjiru Njuguna

6th Respondent

Ruling

1. This Ruling is on the 1st, 3rd and 6th Respondents notice of preliminary objection dated 4/10/2024. The same is on the grounds that:-i.The reference herein is baseless as the applicants have never been served with notice under the Business Premises Rent Tribunal.ii.Before the Tenant filed the Reference herein the Respondents had already filed case No. E075 of 2023 at the chief magistrate’s court Milimani seeking vacant possession as the lease herein had expired.iii.The Applicant herein placed a preliminary objection in the chief magistrate’s court on the grounds of jurisdiction where the said preliminary objection was dismissed and therefore the chief magistrate case is supposed to proceed.

2. The parties agreed to canvass the preliminary objection by way of written submissions and all the parties complied. The 1st, 3rd and 6th Respondents submissions are dated the 5/2/2025 whereas those for the Applicants and the 2nd, 4th and 5th Respondents are both dated the 3/3/2025.

3. It is important to appreciate that these proceedings were originated by the reference said to be anchored on Section 12(4) of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301 of the Laws of Kenya which we hereinafter refer to as “the Act”. The complaint by the Tenants is that:-“The landlord is wrongfully, unlawfully and illegally threatening to evict the Tenants without mandatory notice or valid reasons as for the law. Has given the Tenants an illegal notice”.

4. The illegal notice alluded to and which triggered these proceedings is the 1st, 3rd and 6th Respondents advocates letter dated 1/11/2022. The offensive clause thereof states that:-“Our further instructions are that our clients are no longer willing to lease their share of the property to you and hence you ought to vacate from their rightful share and occupy the share owned by the other three people”.

5. It therefore cannot be correct for the 1st, 3rd and 6th Respondents to state that the Applicants had never been served with a notice under (sic) Business Premises Rent Tribunal. We however observe that they must have meant under the landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

6. The 1st, 3rd and 6th Respondents have claimed to have filed case No. E075 of 2023 at the Milimani Chief Magistrate’s court. We however note that the case involves only the 1st and 6th Respondents on the one hand and the Applicants on the other hand. We doubt that the outcome thereof would have any bearing on the interests of the 2nd, 3rd, 4th and 5th Respondents as manifested in Title LR. No.7785/411 (original No. 7785/8/44).

7. The 3rd ground of the preliminary objection is founded on the existence in the chief magistrates court of case no. Eo75 of 2023. As observed above, most of the parties herein are not involved in the case before the chief magistrates court at Milimani. In any event, the 2nd, 4th and 5th Respondents have contended that they are in a controlled tenancy relationship with the Applicants through the tenancy agreement dated 1/9/2024. There is no evidence that the said agreement has been challenged and/or over ruled by any court.

8. In all, we find that all the issues in this matter are heavily contested and that a fully fledged hearing is mandatory for the just resolution of the same. For example, the Respondents are unable to agree among themselves on whether, -a.There is a tenancy relationship in subsistence between them and the applicants.b.Whether the previous lease in place expired and was revewed or not.c.Whether rent is paid on the demised premises, to who and whether there are any arrears.

9. With the above contestations, we doubt that a preliminary objections can effectively arise from the pleadings and documents on record by the parties. A preliminary objection must be based on a pure point of law, meaning that it should not involve any factual disputes that require evidence or further investigation. It should be a point of law that, if established, would resolve the case without needing a full trial.

10. In this, we rely on the Locus Classicus case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West end Distributors Ltd (1969) EA 696 where the court held that:-“so far as I am aware, a preliminary objection consists of a pure 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”.

11. The court further went on to hold that:-“……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 at all any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

12. We are therefore of the view that the notice of preliminary objection dated the 4/10/2024 does not meet the threshold of the law and is therefore dismissed. The costs thereof shall abide the outcome of the reference herein.

13. In the final analysis, the orders that commend to us are the following:-i.That the notice of preliminary objection dated 4/10/2024 is dismissed.ii.That the parties shall comply with order 11 of the civil procedure Rules with the applicants having 21 days of the date hereof and even days for the Respondents to comply on service.iii.That costs shall abide the outcome of the reference.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30THDAY OF APRIL, 2025. HON. NDEGWA WAHOME, MBS,PANEL CHAIRPERSONHON. JOYCE MURIGI, MEMBER,BUSINESS PREMISES RENT TRIBUNAL.BPRT.Ruling delivered in absence of the parties though Counsel for the 2nd-5th Respondents had been notified.HON. NDEGWA WAHOME, MBS,PANEL CHAIRPERSONHON. JOYCE MURIGI, MEMBER,BUSINESS PREMISES RENT TRIBUNAL.BPRT.