[2022] KEBPRT 835 (KLR)

Okoa Maisha Supermaket Ltd v Five Secrets Investment Limited; Ngotho (Interested Party) (Tribunal Case E100 of 2022) [2022] KEBPRT 835 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 835 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E100 of 2022

Gakuhi Chege, Vice Chair

November 15, 2022

Between

Okoa Maisha Supermaket Ltd

Applicant

and

Five Secrets Investment Limited

Respondent

and

Patrick Mbugua Ngotho

Interested Party

Ruling

1. Before me is a preliminary objection by the respondent dated August 18, 2022 which is based on the following grounds:-i.The claim and the notice of motion refer to a premises described as Mwichingiri Mirera Naivasha Mai Mahiu Road and not only does the respondent not own such property but the description does not refer to a specific identifiable parcel.ii.That the respondent does not own any land in that geographical jurisdiction and hence there cannot exist a landlord/tenant relationship and therefore this tribunal is not seized of any jurisdiction to arbitrate on the same.iii.That the claim and the notice of motion therein are fatally defective and cannot be entertained on the following grounds:-a.The applicant is a limited liability company and no resolution as required by law has been exhibited authorizing any party to transact or deal with the respondent which is also a limited liability company and hence a “gentleman’s agreement” as alleged cannot be implied between corporate bodies.b.The applicant , a limited company has not exhibited any resolution as required by law authorizing the filing of this claim.

2. The preliminary objection was directed to be disposed of by way of written submissions and the respondent filed joint submissions with the interested party dated October 4, 2022 while the tenant/applicant filed submissions dated October 7, 2022.

3. In the case ofOraro v Mbaja (2005) eKLR at page 3/8 Justice J B Ojwang had the following to state on what constitutes a preliminary objection:-“I think the principle is abundantly clear. A “preliminary objection”, correctly understood is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed”.

4. In the celebrated case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696 at page 701, Sir Charles Newbold P, had the following to state on the same issue:-“The first matter relates to the increasing practice of raising points which should be argued in the normal manner, quite improperly by way of preliminary objection. 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 any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and on occasion, confuse the issues. This improper practice should stop”.

5. Guided by the foregoing two cases, I am required to determine whether the preliminary objection passes the test. I observe that the instant matter is highly contested and most of the issues are contested between the parties.

6. It is important to interrogate the contention whether the respondent owns the property on which the suit premises is situate. It will also be necessary to establish if it is mandatory that a landlord/tenant relationship be founded on ownership of a demised premises and whether such relationship exists between the parties herein. All these are matters of evidence which cannot be determined on a preliminary objection.

7. The issue of the nature of the relationship between the parties herein based on alleged “gentleman’s agreement” and whether such relationship can occur between corporate entities is a matter of evidence which ought to proceed to hearing.

8. As to whether there exists a resolution authorizing the filing of the claim by the applicant, I find and hold that the same is also a matter of evidence which cannot be determined by way of preliminary objection.

9. In the premises, I find and hold that this matter ought to proceed to hearing and determination on the merits. I am fortified in this regard by the court of appeal decision in the case of Trust Bank Limited v Amalo Company Limited (2002) eKLR where it was observed at page 2/3 as follows:-“The principle which guides the court in the administration of justice when adjudicating on any dispute is that where possible, disputes should be heard on their own merit. This was succinctly put a while ago by Georges, C.J (Tanzania) in the case of Essanji & Another v Solanki (1968) EA 224:-“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merit and that errors should not necessarily deter a litigant from the pursuits of his right”

10. In conclusion, I proceed to dismiss he preliminary objection dated August 18, 2022 with costs to the tenant/applicant. The matter shall be fixed for hearing and determination on the merits.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 15TH DAY OF NOVEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in the presence of:Thiama holding brief for Muoki for the landlord/respondentNo appearance for the tenantFurther orders:The respondent shall respond to the amended application dated September 23, 2022 within 14 days hereof.Mention on December 6, 2022Mention notice to issue upon the applicantInterim orders extended till then.HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL