[2022] KEHC 17242 (KLR)

Mylesway Investment Limited v Antony (Miscellaneous Case 44 of 2020) [2022] KEHC 17242 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17242 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Case 44 of 2020

SN Mutuku, J

November 9, 2022

Between

Mylesway Investment Limited

Applicant

and

Martha Karwira Antony

Respondent

Ruling

Introduction 1. This matter originates from a Reference filed by the Applicant at the Business Premises Rent Tribunal (the Tribunal) on March 18, 2020. The Respondent had purported to evict the Applicant from the suit premises claiming that their tenancy agreement for Elite Plaza on LR No 17589 in Ongata Rongai has lapsed. The Applicant obtained injunctive orders from the Tribunal restraining the Respondent from evicting and/or closing the Applicants business pending the hearing and determination of the Reference.

2. The respondent filed notice of motion dated July 14, 2020 at Kajiado High Court seeking orders contained in that application including payment of rent arrears in the sum of Kshs 5,184,315. 00.

3. On July 21, 2020, the court (Mwita, J), inter alia, ordered that“In the meantime, the respondent do pay due rent to the applicant/landlady beginning with rent for July, 2020 until further orders of this court.”

4. The Applicant was dissatisfied with that order and filed notice of motion dated July 27, 2020 seeking temporary stay of the orders of July 21, 2020 and contesting the jurisdiction of this court to hear and determine this matter. In the meantime, and owing to non-compliance with the orders of the court issued on July 21, 2020, the Respondent filed Notice of Motion date September 30, 2020 seeking contempt of court orders against the Applicant.

5. This court directed to have both applications, the Notice of Motion dated July 27, 2020 and the notice of motion dated September 30, 2020 heard together.

Notice of Motion dated July 27, 2020 6. This application is anchored on article 162(2)(b) and 165(5)(b) of the Constitution and order 9 rules 5 and 7 of the Civil Procedure Rules. It seeks the following orders:i.That this application be certified urgent and service thereof be dispensed with in the first instance.ii.Pending the hearing and determination of this application there be a temporary stay of the order issued by this Honourable court on July 21, 2020 directing the applicant to pay monthly rent to the Respondent.iii.That this Honourable Court lacks jurisdiction to hear and determine this matter.iv.That the order given by this Honourable Court on the July 21, 2020 be and is hereby declared null and void ab initio.v.That the firm of Nzaku & Nzaku Co Advocates have no locus standi to represent the Respondent in this matter.vi.That costs of this application be provided for.

7. Chrisphine Odongo Ng’ong’a, who described herself as the Director of the Applicant, swore an affidavit in support of the application. It is her case that this court lacks jurisdiction to hear this matter by dint of article 162(2)(b) and 165(5)(b), and therefore the order given by this court on July 21, 2020 is unconstitutional; that this application is wrongly before this Court as the orders of the Business Premises Rent Tribunal were already adopted by the Chief Magistrate’s Court at Milimani Commercial Court in Misc Application No 424 of 2020 which is coming up on the September 24, 2020 and that the application dated July 14, 2020 was wrongly placed before this court and ought to have been made in the Chief Magistrate’s court. Further that there is an application before the Business Premises Rent Tribunal pending ruling on the jurisdiction of the tribunal to hear and determine this matter.

8. The application is opposed by the respondent through a replying affidavit dated March 9, 2021 in which it is deposed that as at the time this matter was filed, the Applicant was still a tenant, and though this is no longer the position the Applicant has since vacated the premises and the rent arrears incurred still remains outstanding; that the Applicant has not complied with the orders issued on July 21, 2020 which are still in force; that the matter at the subordinate court which the applicant alluded to in its application is now spent since the applicant is no longer a tenant of the Respondent and that the issue of paying rent is a contractual obligation and hence this court has jurisdiction.

Notice of Preliminary Objection dated July 27, 2020 9. The Applicant also raised a Preliminary Objection dated July 27, 2020 raising the issues that:i.The High Court created under Article 165 of the Constitution of Kenya lacks jurisdiction to hear and make any determination in this matter.ii.Article 165(5)(b) removes the jurisdiction of the High Court to hear and determine matters contemplated in Article 162(2) of the Constitution.iii.Article 162(2)(b) creates a court in the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land which dispute is now unconstitutionally before this court.iv.The application before this court is not an appeal thus improperly before this court as there is a pending ruling at the Business Premises Rent Tribunal and hearing of the Tenants application at the Chief Magistrate Court at Milimani Commercial Court.v.The firm of Nzaku & Nzaku advocates lack the locus to appear in this matter as they have not filed any notice of appointment or a Notice of Change of Advocates in contravention of order 9 rules 5 and 7 of the Civil Procedure Rules Cap 21 2010.

Notice of Motion dated September 30, 2020 10. The applicant (land lady) brought this application under section 5 of the Judicature Act, section 2 of part 81 of the Civil Procedure (Amendment No 2) Rules ,2012, United Kingdom seeking orders that:i.That this Honourable Court be pleased to certify this Application urgent and service of the application be dispensed with and the same be heard ex-parte in the first instance.ii.That this Honourable Court be pleased to order the Directors of the Respondent Company namely Akinyi Petronilla Susan and Chrispine Odongo Ng’ong’a be committed to civil jail contempt and disobedience of the orders granted on July 21, 2020 and issued on July 24, 2020 by Hon Justice EC Mwita, sitting in the High Court of Kenya at Kajiado in this matter.iii.That the Directors of the Respondent Company do pay costs of this Application jointly and severally.

11. The Application was supported by an Affidavit dated September 30, 2020 sworn by Martha Karwira Antony. She has deposed that this court gave orders on July 21, 2020 for payment of rent arrears; that by dint of the lease agreement the parties entered into on June 21, 2018 the rent payable therefrom is Kshs 347,257. 14 per month exclusive of VAT which the Court directed the Respondent to pay monthly from July, 2020; that the directors of the Respondent company have ignored and/or neglected the said court orders by failing to pay rent.

12. That application is opposed through the Replying Affidavit dated January 21, 2021 sworn by Chrisphine Odongo Ng’ong’a a director of the Tenant company. She has deposed that there is no tenant/landlord relationship as the applicant opted out of the tenancy on November 1, 2020 and further the court lacks jurisdiction; that she does not know Akinyi Petronilla Susan referred to by the Applicant as a director of the company and that the orders given on July 21, 2020 have been challenged through an application that is yet to be heard.

13. She has deposed, further, that this court lacks jurisdiction to hear and make determination on this matter as per Article 165(5)(b) and 162(2)(b). In response to paragraph 4 of the Supporting Affidavit, she has deposed that according to the lease agreement VAT is paid at Kshs 166,000/- which amount she has been paying to the landlady who neglected and/or refused to remit to KRA to their disadvantage and that failure to pay was not intentional but was forced by the illegal acts of the Applicant who made it impossible for them to do business and further due to Covid 19 pandemic.

14. The Applicant filed a supplementary affidavit dated February 12, 2021 in which she averred that this court has jurisdiction as the matter involves contempt of court orders.

Determination 15. This court was urged to determine the issues raised in the preliminary objection first. Through the directions of this court this matter is being canvassed by way of written submissions.

16. All the parties have filed their submissions which address the issues each party is raising. I have read the submissions and have considered the same. It makes sense to start addressing the issue raised in the PO to determine whether this court is possessed of the jurisdiction to hear and determine this matter. It is only after considering that issue that this court is able to determine whether to put down its tools or to continue with the matter.

17. From various decisions, including Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, a Preliminary Objection is discussed in the following terms:“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. Examples are an objection on the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

18. In Nitin Properties Ltd v Singh Kalsi & another [1995] eKLR, the Court of Appeal also captured this legal principle as follows:“A Preliminary Objection 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.”

19. Article 165 (5) (b) of the Constitution of Kenya, 2010provides that the High Court shall not have jurisdiction in respect of matters reversed for the exclusive jurisdiction of the Supreme Court under the Constitution or falling within the jurisdiction of the courts contemplated in Article 162 (2) of the Constitution.

20. Article 162 (2) of the Constitution of Kenya, 2010 , provides for establishment by Parliament of courts with status of the High Court to hear and determine disputes relating to employment and labour relations and the environment and use and occupation of, and title to, land.

21. The courts contemplated under article 162 (2) (b) of the Constitution include the Environment and Land Court (ELC) whose operations are governed by the Environment and Land Court Act, No 19 of 2011. Section 13 (2) of that Act provides as follows:(2)In exercise of its jurisdiction under Article 162 (2) of the Constitution, the court shall have power to hear and determine disputes-a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean environment under Articles 42, 69 and 70 of the Constitution.(4)In addition to the matters referred to in subsection (1) and (2), the Court shall exercise appellate jurisdiction over the decisions- of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

22. I have also read section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, cap 301 which provides that any party to a Reference aggrieved by any determination or order of a Tribunal made therein may, within the time provided by that section, appeal to the ELC.

23. Supreme Court, in In the Matter of Interim Independent Electoral Commission [2011] eKLR, stated as follows on the issue of jurisdiction:[29]Assumption of jurisdiction by courts in Kenya is a subject regulated by the Constitution, by statute, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S” v Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p 14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step”

[30]The ‘Lillian S’ case establishes that jurisdiction flows from the law, and the recipient court is to apply the same, with any limitations embodied therein. Such a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”

24. From the provisions of the law cited here and the authorities, I have no doubt in my mind that the PO raised here is one that raises a pure point of law: that of the jurisdiction of this court to determine this matter. The PO, once determined, has the effect of disposing of this matter with finality, the effect of which is for this court to lay down its tools as far as the determination of the two applications is concerned.

25. After careful consideration of the PO, the arguments of the parties contained in their respective submissions, the applicable law and relevant authorities, it is my considered view, that the PO raised herein is meritorious. This court has no jurisdiction to determine the applications before it. The result of this finding is that any orders issued by this court including the orders dated July 21, 2020 (Mwita, J) have been issues without jurisdiction making them null and void.

26. Consequently, the applications dated July 14, 2020 and September 30, 2020 by the Respondent/Landlady and the application dated July 27, 2020 to the extent that it seeks other orders other than the order contesting the jurisdiction of this court, cannot be litigated before this court.

27. To ensure that no party suffers injustice unnecessarily and for good order and in the name of substantive justice, I direct that this matter be transferred to the Kajiado ELC for determination of the same. The Deputy Registrar of this court is directed to cause this file to be transmitted to the Presiding Judge of theELC, Kajiado, for mention for purposes of giving directions on the matter.

28. Parties are directed to appear before the Deputy Registrar of this Court on November 16, 2022 for directions regarding the date when the matter can be mentioned before the Presiding Judge, ELC Kajiado.

29. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 9THDAY OF NOVEMBER, 2022. S. N. MUTUKUJUDGE3| Ruling in Kajiado HC Misc. Application No. 44 of 2020