[2024] KEBPRT 176 (KLR)

Nyambura & 8 others v Secretary General, Kenya African National Union (KANU) (Tribunal Case 101, E100 & E102-108 of 2023 (Consolidated)) [2024] KEBPRT 176 (KLR) (26 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 176 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 101, E100 & E102-108 of 2023 (Consolidated)

P May, Member

February 26, 2024

Between

Elizabeth Nyambura

1st Applicant

Joseph Muriuki

2nd Applicant

Charles Gitonga

3rd Applicant

Kungu Maitu

4th Applicant

Timothy Bundi

5th Applicant

Moffat Moya

6th Applicant

Godwin Gachagua Githui

7th Applicant

Veronica Nyambura

8th Applicant

Stephen Kamau

9th Applicant

and

Secretary General, Kenya African National Union (KANU)

Respondent

Ruling

1. The respondent herein, who is the landlord of the demised premises issued a notice dated 8th August, 2023. The notice was to take effect as from 1st November, 2023. The ground set out in the notice was that there had been a change of ownership of the demised premises and that the new owner wished to demolish the demised premises. The tenants subsequently filed their respective references to challenge the said notices. They further filed a notice of preliminary objection on the grounds that the respondent lacked the capacity to issue the notices and that the said notices contravened the provisions of section 7 of CAP 301.

2. The notice of preliminary objection as a matter of practice took precedence over the other pending applications. The parties elected to canvass the preliminary objection by way of written submissions. I have considered the submissions and wish to proceed as follows:

3. The parameters of consideration of a preliminary objection are now well settled. A preliminary objection must only raise issues of law. The principles that the Court is enjoined to apply in determining the merits or otherwise of the Preliminary Objection were set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. At page 700 Law JA stated:“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.”

4. At page 701 Sir Charles Newbold, P added:“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...”

5. For a preliminary objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful, dispose of the suit.

6. As already been stated, one of the preconditions for a valid preliminary objection is based on the assumption that the facts pleaded are correct and unopposed by the rival party.

7. Section 4(2) is in the following terms;“A Landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant any term or condition in or right or service enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form”.

8. Section 2(1) of the said Act defines a Landlord as follows;“Landlord” in relation to a tenancy means the person for the time being entitled as between himself and the Tenant to the rents and profits of the premises payable under the terms of the tenancy.”

9. The applicants have contested as whether the respondent fits the definition of a landlord. The respondent has stated that the property has changed hands but as to the question on whether that the respondent still accrues a benefit from the premises thus entitled to issue the notices, the same cannot be ascertained from the pleadings filed. All these require the Tribunal to call in aid evidence to ascertain the same hence ousting the Preliminary Objection from being a pure point of law.

10. The applicants also challenged the reference on the basis that the grounds relied on in the notice are not those provided under section 7 of CAP 301. With the greatest of respect, this objection calls upon this Tribunal and the parties to make submissions as to whether the grounds relied upon are within those provided under section 7 of CAP 301.

11. In the end the notice of preliminary objection is dismissed with no orders as to costs.

12. In the interest of justice, the parties should take the necessary steps to prosecute the reference in a timeous manner. On the question of payment of rent, the respondent shall be entitled to the same during the pendency of these proceedings.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26TH DAY OF FEBRUARY 2024HON. PATRICIAL MAYMEMBER26. 02. 2024Delivered in the presence of;Mr. Obiero holding brief for Mr. Orienjo for the Respondent/LandlordMr. Kariuki Mwangi for 1st to 9th Applicants