[2021] KEBPRT 100 (KLR)
The Tribunal held that the issues raised in the preliminary objection, including the existence of a landlord-tenant relationship and the Applicant's corporate authority to sue, are matters requiring evidence and cannot be determined as pure points of law. As such, these issues are not suitable for determination by...
Source-derived case information.
- Citation
- [2021] KEBPRT 100 (KLR)
- Parties
- Applicant: Restitution Chambers Kenya Limited; Respondent: Akiba Properties Kenya Limited; Respondent: Scolastica Wambui Kibathi
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 90 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Jurisdiction of Tribunal, Landlord Tenant Relationship, Corporate Authority to Sue, Preliminary Objection Standard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Restitution Chambers Kenya Limited
Applicant
Akiba Properties Kenya Limited
Respondent
Scolastica Wambui Kibathi
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a landlord and tenant relationship exists between the parties conferring jurisdiction on the Tribunal.
- 2 Whether the Applicant had proper corporate authority to institute proceedings and appoint advocates.
- 3 Whether the preliminary objection raises pure points of law or involves contested factual matters.
Ratio Decidendi
The Tribunal held that the issues raised in the preliminary objection, including the existence of a landlord-tenant relationship and the Applicant's corporate authority to sue, are matters requiring evidence and cannot be determined as pure points of law. As such, these issues are not suitable for determination by way of preliminary objection. The Tribunal therefore dismissed the preliminary objection, finding that the objections raised by the Respondent are factual in nature and must be canvassed at a full hearing.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 23/8/2021 is dismissed with costs to the Applicant/Tenant.
- The matter shall proceed for determination of the issues in dispute in the normal manner.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 90 OF 2021 (NAIROBI)
RESTITUTION CHAMBERS KENYA LIMITED..............................TENANT/APPLICANT
VERSUS
AKIBA PROPERTIES KENYA LIMITED.................................LANDLORD/RESPONDENT
SCOLASTICA WAMBUI KIBATHI.....INTENDED INTERESTED PARTY/RESPONDENT
RULING
1. The landlord herein has moved this Tribunal through a preliminary objection dated 23/8/2021 on four (4) grounds.
2. The 1st ground is that there is no (and has never been) landlord and tenant relationship between Akiba properties Limited and Restitution Chambers Kenya Limited and the honourable Tribunal therefore lacks jurisdiction to entertain the proceedings.
3. The 2nd ground is that there is no resolution or valid resolution of Restitution Chambers Kenya Limited approving the institution of these proceedings.
4. The 3rd ground is that there is no resolution or valid resolution of Restitution Chambers Kenya Limited appointing the firms of advocates that have purported to represent the Applicant.
5. The 4th and final ground is that the suit is defective, bad in law and does not lie.
6. The preliminary objection is opposed through a replying affidavit of Kenneth Mwige sworn on 16th September 2021 who is a director of the Tenant/Applicant.
7. In answer to ground one of the objection, he deposes that the Tenant/Applicant has been operating a commercial business since the year 2014 to date.
8. He further deposes that development of the suit property was made on the basis of assurances given by Winfred Wangari Karani Gitao a majority shareholder of the landlord/Respondent and beneficiary of the said property. As such the said Kenneth Mwige deposes that Restitution Chambers Kenya Ltd is not a volunteer, a squatter or a trespasser on L.R No. 414/94 (original number 4148/11/76) stating the relationship between it and the 1st Respondent to be one of Landlord/Tenant.
9. The deponent continues to give details on how the tenant went into possession of the suit property disputing the contents of the preliminary objection.
10. I am now required to consider whether to uphold or dismiss the preliminary objection.
11. In the case of Oraro – vs- Mbaja (2005)eKLR the court cited the decision in Mukisa Biscuits Manufacturing Co. Ltd – vs- West and Distributors Ltd (1969) EA 696 at page 3/6 and went ahead to hold as follows:-
“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 processes 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”.
12. The Landlord in its submission contends that it has never been paid rent as the same is collected by the Applicant. The Respondent has never built premises on the property as the structures thereon were built by the Applicant and remain the property of the Applicant as per the Landlord’s submissions.
13. It is further submitted that Winfred Wangari Karani is a shareholder and director of the Applicant holding 49% shares and never participated in making resolution to lease the property and to commence these proceedings.
14. I find and hold that the issues raised by the Respondent are matters of evidence which ought to be canvassed during a full hearing and cannot be the subject matter of a preliminary objection.
15. In the premises, I proceed to dismiss the preliminary objection dated 23/8/2021 with costs to the Applicant/Tenant.
16. The matter shall proceed for determination of the issues in dispute in the normal manner.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF NOVEMBER, 2021
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Kagunda for the Applicants/Tenants
Ivy Kagongo holding brief for Mrs. Thongori for the Interested Party.
Further order Mention on 19/11/2021 for directions on the hearing.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL