[2021] KEBPRT 483 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 8 OF 2019 (NAIROBI)

PETER WAIMIRI MAINA.....................................LANDLORD/APPLICANT

VERSUS

NEW MIAMI TAVERN LIMITED...........................RESPONDENT/TENANT

RULING

The Notice of Preliminary objection dated 26/1/2021 is in the following terms:

“That this Tribunal has no Jurisdiction to hear and determine this matter as the respondent is no longer a tenant in the premises, a fact known and acknowledged by the Applicant”.

On 7/4/2021, the, Tribunal directed that the Respondent’s notice of Preliminary Objection be heard by way of written submissions. Both parties have filed their submissions as at the time of writing this ruling.

THE RESPONDENT’S SUBMISSIONS may be summarized as follows:

1. That for the Tribunal to deal with matters related to Landlord and Tenant relationships a tenancy agreement must be in existence between the two partis. A Tribunal cannot determine a matter/suit where a Landlord/Tenant relationship has been terminated or is no longer in existence. Reliance for this proposition was put on the case of Republic vs. The Chairman BPRT exparte Veihi Premchand Shah (2012) EKLR.

2. That whereas there existed a Landlord-Tenant relationship between the parties, the Landlord issued a Notice to terminate the said Tenancy which the Tenant resisted by filing a Reference.

3. That in the year 2020, the Respondent (Tenant) vacated the premises terminating the Tenant/Landlord Relationship between the parties herein.

4. That the Tenant has since assigned the demised premises to Jacklo company Ltd who was to continue paying rent to the Landlord until the lease was lawfully terminated. The Respondent has therefore ceased being a tenant of the Applicant.

5. That the Applicant/Landlord is well aware of this state of affairs but continues to treat the Respondent as his tenant.

THE APPLICANT’S (LANDLORD’S) SUBMISSIONS MAY BE summarized as follows:

1. That apart from the Notice of appointment of advocates and the Notice of preliminary objection, the Respondent has not filed any other document to prove that they are not tenants of the Applicant.

2. That the Tenants are only dealing with evidence.

3. That the landlord has sworn an Affidavit in response to the notice of preliminary objection.

4. That the Respondents attempts to pay rent using Cheques belonging to Jacklo company ltd were thwarted by counsel for the Landlord/applicant.

5. That there is no evidence that the Landlord acknowledged the Tenants intention to vacate and re-assign the business premises to third parties.

6. That is not stated by the Tenant how the alleged new tenant came to be in the premises.

A preliminary objection was referred in the case of Mukhisa Biscuits vs. WEST END DISTRIBUTORS as follows:

“Preliminary objection is in the nature of what used to be a demeanor.

It raises prove points of law which is agreed on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any facts have to be ascertained or if what is sought is the exercise of Judicial discretion.

Further, in the case of DAVID KAROBIA KIIRU VS. CHARIE NDERITY GITOI & ANOTHER (2018) eKLR at paragraph 12, the court stated as follows:

“For a preliminary objection to succeed, the following tests ought to be satisfied firstly, it should raise a point of law secondly it is agreed on the assumption that all the facts pleaded by the other side are correct and finally it cannot be raised if any that 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”.

In this suit, the tenant is clear that he resisted the Landlord’s Notice to terminate the Tenancy by filing a Reference against the same at the Tribunal. The Tenant is not clear on what became of the Reference.

The Tenant also states in is submissions that he vacated the suit premises and assigned the same to a third party. He further states that the Landlord applicant is as well ….of this position but continues to treat him as his Tenant.

These allegations have been denied by the Landlord who insists that the Tenant/Respondent is still his Tenant. Applying the tests outlined in the authorities I have cited above, I do find that the following facts need to be ascertained before the preliminary objection herein has been raised.

i) Whether the Tenant/Respondent is a Tenant of the Applicant.

ii) Whether the Tenant/Respondent has assigned the lease to a third party and under what circumstances.

iii) Whether the Tenant has vacated the suit/lincenced premises.

The position at law being that a preliminary objection cannot be raised if any facts have to be ascertained, I therefore do find that the preliminary objection by the Tenant who has in any event not filed my replying affidavit to the averments by the Landlord, has no merit and I proceed to dismiss the same.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING READ AND DELIVERED THIS 18TH DAY OF MAY 2021.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

MS Musyoki for the Respondent- present

Kamatha for the Landlord- present