[2024] KEBPRT 202 (KLR)

Njoroge & another v Etwons Property Consultants Ltd (Tribunal Case E854 of 2023) [2024] KEBPRT 202 (KLR) (28 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 202 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E854 of 2023

N Wahome, Member

February 28, 2024

Between

Bernard Muiruri Njoroge

1st Tenant

Julia Thogori Gathu

2nd Tenant

and

Etwons Property Consultants Ltd

Landlord

Ruling

1. The Applicant moved this court by the Plaint dated 31. 08. 2023 and with it a verifying affidavit, list of witnesses, witness statement and plaintiff’s list of documents all dated the even date of 31. 8.2023. The plaintiffs principally sought for orders of injunction and further to have this court compel the Respondent to reconcile the statement of Accounts on the actual rent due to it. They sought for costs of the suit and any other relief that this court may deem it fit to grant.

2. On the filing of the Plaint and the Application thereof dated the same date of 31. 8.2023, the Applicants sought for the same orders as in the plaint but requested that a temporary order of injunction be granted in the interim.

3. While granting the interim orders to the Applicants on the 5. 9.2023, I invoked Article 159 of the Constitution and required the Applicants to comply with Regulation 5 of the Regulations to the Act within seven (7) days of the date of the order. Indeed, the Applicants’ Counsel did extract my said orders on the 8. 9.2023 and clause 4 thereof was very particular on the directions that I had given.

4. In response to the Applicants Application, the Respondent filed a notice of preliminary objection dated 27. 11. 2023. It essentially asserted that there was no Tenant/Landlord relationship and/or between the parties before the court and thus this court lacked the jurisdiction to adjudicate over the matters at hand.

5. Directions were taken on the 29. 9.2023, 30. 10. 2023, 30. 11. 2023, 11. 12. 2023 and 5. 2.2024 by consent of the parties and with the concurrence of the court to the effect that both the preliminary objection and the Application would be heard together and be canvassed by way of written submissions but in the meantime, the parties were to file their responses and supplementary documents if need arose.

6. Despite the prolonged delay and deep lethargy by Counsels for both parties, eventually it was only the Counsel for the Respondent who filed the submissions dated 15. 2.2024. At the time of writing this Ruling, the Applicants had not filed any submissions nor responses to the Preliminary Objection as there was none in the portal nor in the court file.

7. In looking at the totality of the materials before me, I am of the considered view that the issues for determination are the following;-a:Whether there is a Tenant/Landlord relationship between the Applicants and the Respondent and therefore jurisdiction of this court to preside over the matter.b:Whether the Applicants suit is competent.c:Who should pay the costs of this suit

Issue No. A: Whether there is a Tenant/Landlord relationship between the Applicants and the Respondent and therefore, jurisdiction of this court to preside over this matter 8. The Relationship between the parties herein seem to be founded on the letter of offer dated 19. 2.2021 signed off by one D. Kamata Njogo who had signed off as Director. He indicated the Account into which the rents would be paid as Imara Enterprises Account No. 2.

9. The lease period was offered to be ten (10) years Renewable for another five (5) years at a monthly rent of Kshs. 82,915/=. It seems that the offer was taken up by the Applicants in view of cheques made by them in favour of Imara Enterprises Ltd annexed in their supporting Affidavit as annexure “BMN2” and in their document No. 3 named “Rent Statement as at 31st July, 2023” in their list of documents dated 31. 8.2023.

10. It then follows that having taken up the said offer, the jurisdiction of this court to adjudicate over this matter as denoted under the Act was ousted and extinguished. Section 2(1) of the Landlord and Tenant (shops, hotels and Catering Establishments Act) Cap 301 hereinafter the Act, provides that;-“A controlled tenant means a tenancy of a shop, hotel or catering establishment-a.Which has not been reduced into writing; orb.Contains provision for termination, otherwise than breach of covenant, within five years from the commencement thereof.”

11. From the foregoing, I agree that this court lacks the wherewithal or rather the jurisdiction to preside over this matter. As settled by the law and legal precedents this court should not take any further step and should down its tools having absorbed this reality. In the case of; Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) ltd[1989] eKLR, the court held that;“Jurisdiction is everything, without it, a court has no power to make one more step… where a coourt has no jurisdiction…A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

12. I have noted that the Respondent has raised the issue of the relation between the parties. To the Respondents, a relationship between them and the Tenant did not exist. To them, that was yet another ground that ousted the jurisdiction of this court. I respectively decline to agree with that submissions.

13. In the proclamation of attachment dated 29. 3.2023, M/S Heron Auctioneers indicated that they were duly instructed by Etwons Property Consultants Ltd who were referred to as Creditors to levy distress against the Applicants on the demised premises. The proclamation was annexed in the Applicants supporting affidavit as annexure “BMN1”.

14. It is noteworthy also that the letter of offer was drawn by D. Kimata Njogo, the rents were being paid to M/S Imara Enterprises Ltd whereas some of the distress for rent was being effected on behalf of the Respondent. In those circumstances, the preliminary objection would have failed for reasons that the facts surrounding that particular fact were not universally agreed.

15. In the celebrated case of; Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA696 the court held that;-“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 the contract giving rise to the suit to refer the dispute to arbitration.”

16. The court further held, and which is not the case here, that a matter to qualify for address by way of a preliminary objection. It must satisfy the following principles;-“A preliminary objection is in the nature of what used to be a demurrer it raises a pure point of law which is usually 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.”I am therefore of view that this particular ground of preliminary objection fails as being premature and not satisfying the principles and standards as established in the case of Mukisa Biscuits (supra).

Issue No. B: Whether the Applicants suit is competent 17. By my orders made on the 5. 9.2023, I directed the Applicants to comply with Regulation 5 of the Regulations to the Act. The same provides that;-“Reference to the Tribunal under Section 6(1) or Section 12(c) of the Act shall be in Forms B and C in the schedule to these Regulations.”

18. Despite my invoking Article 159 of the Constitution to allow the Applicants to properly present their grievances before this court, the direction which warranted seven (7) days for compliant did not attract any interest from the Applicants. The approach of the Applicants to this court by way of plaint is not known nor recognized under Cap 301. The said law is coached in mandatory terms and calls for strict compliance. This the Applicants did not abide. I therefore declare the suit by the Applicants incompetent and would strike the same out.

Issue No. C: Who should bear the costs of the suit 19. The Respondent purported to be the landlord by issuing instructions for levy of distress which is the exclusive preserve of Landlords. By those instructions and proclamation thereof, the same triggered the suit herein against the Respondent. The Respondent was therefore the author of its own misfortune. I would therefore order each party to bear own costs.

20. In the final analysis, the orders that commend themselves to me are the following;-(a)That the notice of preliminary objection is upheld and in particular to the effect that this court has no jurisdiction over the matter before it.(b)That the Applicant’s suit and the attendant filings are incompetent and are struck out.(c)That each party will bear own costs.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KAKAMEGA THIS 28TH DAY OF FEBRUARY 2024. HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of the parties