[2023] KEBPRT 1216 (KLR)
The Tribunal found that the preliminary objection raised by the respondent did not meet the legal threshold of a preliminary objection as defined in law. The grounds advanced required the ascertainment of facts, such as the existence of a tenancy, the status of letters of administration, and whether fraud or...
Source-derived case information.
- Citation
- [2023] KEBPRT 1216 (KLR)
- Parties
- Applicant: Lucy Wangui Mathenge; Respondent: Yusuf Rajab Baraka
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E045 of 2022
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- CN Mugambi
- Legal Topics
- Jurisdiction of Tribunal, Capacity to Sue, Locus Standi, Fraudulent Orders, Pleadings Sufficiency
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lucy Wangui Mathenge
Applicant
Yusuf Rajab Baraka
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the issues raised in the preliminary objection are pure points of law or require ascertainment of facts.
- 2 Whether the Tribunal has jurisdiction to hear the matter without considering evidence.
- 3 Whether the applicant has capacity to institute the suit and whether the respondent has locus standi.
Ratio Decidendi
The Tribunal found that the preliminary objection raised by the respondent did not meet the legal threshold of a preliminary objection as defined in law. The grounds advanced required the ascertainment of facts, such as the existence of a tenancy, the status of letters of administration, and whether fraud or concealment of material facts occurred. Since these matters could not be determined without considering evidence, they could not be disposed of as pure points of law. The Tribunal therefore dismissed the preliminary objection, holding that it lacked merit and did not warrant the orders sought.
Court Disposition
preliminary objection dismissed
Orders
- The notice of preliminary objection dated February 21, 2023 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
Mathenge v Baraka (Tribunal Case E045 of 2022) [2023] KEBPRT 1216 (KLR) (16 June 2023) (Ruling)
Neutral citation: [2023] KEBPRT 1216 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E045 of 2022
CN Mugambi, Chair
June 16, 2023
Between
Lucy Wangui Mathenge
Tenant
and
Yusuf Rajab Baraka
Landlord
Ruling
1. The landlord’s notice of preliminary objection dated February 21, 2023 is brought on the grounds;-a.That the issues raised in this suit and application are outside the jurisdiction of the Tribunal.b.That the Applicant lacks capacity to institute the suit and therefore the suit is incompetent at the point of inception.c.That the suit lacks legal sufficiency of pleadings.d.That the orders issued in this matter have been issued fraudulently by concealment of material facts.e.That the “defendant” lacks locus standi to defend these proceedings.f.That the “defendant” having not taken out letters of administration is a stranger to these proceedings.g.That the suit is bad in law and an abuse of the process of the court.h.That the suit is void ab initio by reason of non-compliance with the law.
2. The Respondent’s notice of preliminary objection has raised so many points that in my view, give it issues of mixed fact and law.
3. The first issue I have to determine is whether the notice of preliminary objection by the Respondent amounts strictly to a preliminary objection as by law defined.
4. It is not possible to determine the issue of jurisdiction in this matter without considering the evidence on record by way of affidavits. I have noted from the Respondent’s own letters that he is the one who has issued “notices to vacate” to the Applicant. The Respondent’s affidavit sworn on November 4, 2022 at paragraph 4 states as follows:-“That I have approached the tenant several times for purposes of clearing my rent arrears of Kshs. 67,500/= but the tenant has refused or declined to pay the same.”
5. The tenant is on the suit property pursant to a lease agreement orally entered into between himself and the father of the Respondent. The Respondent has not denied that the tenant is currently in occupation of the premises. I will in these circumstances, leave the issue of jurisdiction to be determined after I have examined several factual situations for example: whether or not the Respondent has taken out letters of administration to the estate of his deceased father; whether or not the Respondent is the landlord of the suit premises as defined under the Act, Cap 301 of the Laws of Kenya; who has been demanding and receiving rent from the tenant amongst others.
6. Whether or not the orders herein have been issued fraudulently and by concealment of material facts is also an issue of fact to be established. The Tribunal will have to consider facts to establish fraud and further evidence to establish the concealment of material facts. The preliminary objection of itself cannot establish these facts and this ground cannot therefore be the basis of a preliminary objection.
7. The other grounds raised in the Respondent’s preliminary objection are so generalized and unsubstantiated, they cannot pass for preliminary objection as legally defined.
8. Preliminary objections cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion [see the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696).
9. In the circumstances, I find no merits in the notice of preliminary objection dated February 21, 2023, the same is dismissed with no orders as to costs.
RULING DATED, SIGNED AND DELIVERED THIS 16TH DAY OF JUNE 2023HON. CYPRIAN MUGAMBICHAIRPERSON16. 6.20223