[2021] KEBPRT 380 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 317 OF 2021 (NAIROBI)

PAUL WAGITHIRA MAINA..................................................TENANT/APPLICANT

VERSUS

ABISOLOM KINYUANJUI GATHUKI....................LANDLORD/ RESPONDENT

RULING

a. Introduction

The Respondent has raised a notice of preliminary objection dated 7th May 2021 in which he raises the following objections.

1. That this honourable Tribunal has no jurisdiction to hear and determine this suit and therefore this matter and all related pleadings ought to be struck out.

2. That the suit is bad in law frivolous and vexatious, abuse of the court process and it should therefore be dismissed with costs.

3. That there does not exist any Tenant/Landlord relationship between the Applicant and the Respondent herein.

b. BackGround;

The Tenant’s complaint against the Landlord is that;

“The Landlord has unlawfully closed my business premises on 30th March 2021 with all my goods of trade inside with sole intention to evict me contrary to the provisions of Cap 301 of the Laws of Kenya. I pray this honourable court to intervene and I be given the necessary orders plus costs of the case.”

Contemporaneously with the filing of the reference/complaint, the Tenant filed a notice of motion seeking to have the suit premises re-opened and the Respondent prohibited from in any way interfering with the Tenant’s quiet occupation and use of the suit premises, stall No. 494 Ngala – Nyayo Market pending the hearing of this case.

The said application is brought on the said basis that the Applicant is a Tenant of the Respondent in the suit premises. The Respondent has not filed any replying affidavits to counter the statements of fact set forth in the Tenant’s affidavit in support of the application.

The Respondent has however filed a list of documents to include a copy of a sale agreement and a copy of the termination agreement.

c. The Respondent’s Written Submissions in Support of the Notice of Preliminary Objection may be summarized as follows;

1. That there does not exist any Landlord/Tenant relationship between the parties herein.

2. That the Respondent is the owner of stall number 494, Nyayo Street/the suit premises).

3. That the Tenant intended to purchase the Respondent’s stall by a sale agreement dated 19th December 2020 at a total consideration of Kshs 110,000/-.

4. That the Tenant failed to pay the consideration as agreed and the arrangement was cancelled.

5. That the sale having been cancelled, the Tenant got his deposit back.

6. That the Applicant has refused to vacate the stall subject matter and has also failed to pay the balance of the consideration.

7. The Respondent pleads Article 40 of the Constitution of Kenya (2010)and section 12 of Cap 301 in aid of his case.

8. That the Respondent has submitted to court the sale agreement and termination of the sale agreement.

9. That the Applicant having breached the contract between him and the Respondent, he is not entitled to equitable relief.

10. That the existence of Landlord/Tenant relationship is a pre-requisite to the application of the Act and where no such relationship exists, the Act will not apply.

d. Ought the Preliminary Objection to be Allowed?

In the case of David Karobia Kiiru – Vs- Charles Nderitu Gitoi & Another [2018] eKLR Justice Ohango at paragraph 12 of his ruling observed as follows;

“For a preliminary objection to succeed, the following tests ought to be satisfied. Firstly, it should raise of 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 ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection should, if successful, dispose of the whole suit.”

I have observed in the introductory paragraphs that the application and the complaint herein have been brought on the basis that the Applicant is the Respondent’s Tenant in the suit premises. I have further noted that the Respondent has not filed any replying affidavit to the Tenant’s application. Factually, the application is unopposed.

The existence of a Tenant/Landlord relationship is a question of fact and one that has to be ascertained. Whether or not the parties herein were selling the suit premises to each other and the terms thereof and whether or not the sale fell through the further matters of fact that need to be ascertained.

The Respondent has tried to support his preliminary objection by the introduction of documents in his submissions. He has referred the Tribunal to the agreement of sale of the business and to a further agreement that terminated the former.

I held that it is improper for the Respondent to seek to rely on evidence introduced by way of submissions. Submissions are neither pleadings nor evidence. Whereas I have seen the list of documents filed by the Respondent, the same can only be useful to the Respondent during the hearing of the complaint by the Tenant or if the same had been introduced to these proceedings by way of replying affidavit.

The Applicant cannot be in a position to respond to a list of documents except it be introduced into the proceedings as stated above.

In the circumstances, I do find that the preliminary objection raised by the Respondent does not meet the test set out in the above authority and I hereby dismiss the same with costs to the Applicant. I further order that the application dated 9th April 2021 be fixed for hearing.

The application dated 9th April 2021 will be heard on 7th September 2021. The Respondent to file and serve his replying affidavit within seven days.

Matter to be mentioned on 23rd August 2021. Tenant to be served.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 5TH DAY OF AUGUST, 2021 IN THE PRESENCE OF MR NJUGUNA FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL