[2025] KEBPRT 329 (KLR)

Shah & others v SBS Dunhill Group (EA) Limited (Tribunal Case E178 of 2025) [2025] KEBPRT 329 (KLR) (27 June 2025) (Ruling)

Neutral citation: [2025] KEBPRT 329 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E178 of 2025

CN Mugambi, Chair

June 27, 2025

Between

Kamalkumar C Shah & others

Applicant

and

SBS Dunhill Group (EA) Limited

Respondent

Ruling

Introduction 1. The Tenant’s motion dated 8. 05. 2025 seeks the following orders;-a.That the court issues conservatory orders staying the orders of the Tribunal issued on 28. 2.2025 pending the hearing and determination of the Application.b.That a declaration do issue declaring the orders issued on 28. 2.2025 to be irregular, thus null and void.c.That the instant suit be consolidated with Tribunal Case No. E071 of 2024. d.That in the alternative, this suit be struck out.e.That the Directorate of Criminal Investigations to investigate the issuance of orders and matters related to Case Numbers BPRT E1071 of 2024 and Case No. E1374 of 2024. f.That the court be pleased to issue any other orders it may deem fit to grant.g.Costs

2. The Landlord in opposing the Application has filed a notice of preliminary objection dated 21. 5.2025 and the same has been brought on the following grounds;-a.That there is no Landlord-Tenant relationship between the parties herein.b.That the Tenant had yielded vacant possession of the premises subject of the Application on 16. 5.2025 and there is therefore no basis for the orders sought.c.The Tenant yielded vacant possession of the suit premises pursuant to a valid court order issued by this Tribunal. The instant Application is therefore misconceived, in bad faith and an utter abuse of the Tribunal process.

The Tenant’s depositions 3. The affidavit in support of the Application sworn by Mr. Geoffrey Somoni Birundu may be summarized as follows;-a.That he is the Chief Executive Officer of the Tenant, competent to swear the affidavit.b.That the Tenant filed a Reference in Case No. BPRT E1071 of 2024 challenging distress for rent proceedings against it and the determination of its tenancy status and on 2. 10. 2024, conservatory orders were issued in that suit staying the distress for rent.c.That the court in BPRT Case No. E1071 of 2024 fixed the matter for mention on 6. 01. 2025. d.That without notice to the Tenant, the Landlord moved the Tribunal in a new case No. E1374 of 2024 after the parties had already appeared before Hon. Patricia May in Case No. E1071 of 2024. e.That in a skeleton file in BPRT E1374 of 2024, the Tribunal issued orders of eviction against the Tenant based on a fallacious affidavit of service where the Tenant was indeed never served with the Application under consideration.f.That on 6. 01. 2025, Hon. Patricia May stayed the orders issued by Hon. Chege in BPRT E1374 of 2024 and ordered that Case No. E1071 of 2024 and E1374 of 2024 be mentioned together on 3. 02. 2025. g.That on 15. 1.2025, Hon. Chege vacated the orders of stay issued by Hon. Patricia May on 6. 01. 2025 without any notice to the Tenant and on what amounted to questionable circumstances.h.That the Tenant complained in writing to the Chairman of the Tribunal by a letter dated 20. 1.2025. i.That when the parties appeared before the chairman of the Tribunal on 3. 02. 2025, Case No. E1374 of 2024 was struck out with no orders as to costs.j.That thereafter, the parties proceeded to prosecute Case No. E1071 of 2024 which was still pending as at the time the affidavit was sworn by the Tenant’s representative.k.That while awaiting for the outcome in Case No. E1071 of 2024, the Tenant was made aware of the instant Case on 27. 2.2025 and wherein orders verbatim similar to the ones issued in Case No. E1374 of 2024 were issued and the said orders may be executed any time.l.That there is a clear case of the abuse of the court process and the Tenant has yet again made a complaint to the chairman of the Tribunal.m.That it is imperative that the orders of 28. 2.2025 be stayed and the instant suit be struck out as it makes a mockery of the Tribunal.

The Landlord’s Grounds of Opposition 4. The Landlord has opposed the Application by filing its grounds of opposition dated 21. 5.2025 which I summarize as follows;-a.That the Application is frivolous, a sham and an utter abuse of the Tribunal’s process.b.That the Application has been overtaken by events since the Landlord has taken vacant possession of the premises, the Tenant yielded vacant possession of the suit on 16. 5.2025. c.That the Tenant yielded vacant possession of the suit premises pursuant to a valid order issued by the Tribunal.d.That Case NO. E1071 of 2024 is distinct and totally separate from the instant suit and relate to two different causes of action.

The Tenant’s submissions 5. The Tenant has submitted that in order to find merits of the preliminary objection, the Tribunal would have to visit the facts of the case to be able to ascertain whether it indeed has jurisdiction to or not. The court would have to establish whether indeed there has been vacant possession of the premises and also whether the order used to interfere with the tenancy is valid. The Tenant therefore submits that the preliminary objection does not meet the threshold as decided by law and precedent. The Tenant has further submitted that it is still a Tenant of the Respondent and that its tenancy answers to the description of a controlled tenancy under Cap 301 of the Laws of Kenya and hence the Tribunal has the jurisdiction to hear and determine this dispute.

6. The Tenant has submitted that the affidavit pursuant to which the orders of 27. 2.2025 were made by the Tribunal is sworn by a deceased person Mr. Ajeet Kumar C-Shaws and signed by a different person Kamalkumar C-Shah.

7. It is further submitted that the rights of the Tenant to a fair hearing were violated by the Landlord and that further, the pleadings were field by an entity who is not a Landlord in the lease.

8. The Tenant further submits that it has already submitted a death certificate in respect of the person who purported to swear the supporting affidavit in this case.

9. It is also submitted that the affidavit of service was defective and does not bear the case Reference Number and/or the process server’s certificate.

10. It is finally submitted that the Landlord in BPRT Case No. E178 of 2025 was deceased at the time of filing the said suit and no life can be breathed into the said suit.

The Landlord’s/Respondent’s Submissions 11. The Landlord has submitted that it is a partnership of Mr. Kamalkumar C. Shah Ajeetkumar C. Shah and Pankay C. Shah.

12. The Landlord has submitted that it is not disputed that the Tenant’s Application in ELC Suit No. E112 of 2023 was dismissed on 24. 2.2024.

13. It is also submitted that the orders issued on 2. 10. 2024 in Case No. BPRT E1071 of 2024 restrained the Landlord from distressing for rent and did not issue any conservatory orders against eviction.

14. The Landlord also submits that the Tenant’s cause of action upon eviction lies in the Environment & Land Court.

15. The Landlord further submits that it is not disputed that the Tenant was evicted on 16. 5.2025 and accordingly, the Tribunal ceased to have jurisdiction in this matter from that date.

16. The Landlord submits that the orders sought have been overtaken by events since the orders for vacant possession have been complied with and the Landlord has taken vacant possession.

17. The Landlord has finally submitted that the Tribunal lacks jurisdiction to issue orders directing the DCI to carry our investigations into the issuance of court orders.

Analysis and determination 18. The issues I have to determine in this Application are the following;-a.Whether the Landlord’s Preliminary Objection is merited.b.Whether the Tenant is entitled to the orders sought in its Application.c.What orders ought to issue in disposing of the Application.

Issue A: Whether the Landlord’s Preliminary Objection is merited. 19. The Preliminary objection by the Landlord revolves around the allegation that there does not exist a Landlord/Tenant relationship between the parties and that the Tenant yielded vacant possession of the premises and therefore the court does not have the jurisdiction to hear and determine the dispute herein.

20. The objections raised by the Landlord are factual and would require evidence to be considered in order to ascertain the same. This is because these factual objections as pleaded are not admitted by the Tenant. The circumstances surrounding the issuance of the orders of 28. 2.2025 having been challenged by the Tenant, it cannot be summarily determined by way of a Preliminary objection that indeed no tenancy exists. The court is by the Tenant’s Application, called upon to determine the priority of the said circumstances.In the case of; Oraro vs Mbaja [2005] I KLR 141, the court stated 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 served 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 aunthentification is not as a matter of legal principle a true preliminary objection which the court should allow to proceed.”

21. I am in the circumstances not satisfied that the Preliminary objection by the Landlord meets the threshold of a Preliminary objection and I dismiss the same.

Issue B: Whether the Tenant is entitled to the orders sought in its Application 22. The orders issued on 28. 2.2025 emanate from the proceedings of 27. 2.2025. these are the orders that form the backbone of the contestation between the parties and which inform the Tenant’s Application. The first prayer sought in the Application is an order that the orders so issued were irregular and therefore null and void. From the record, this matter first came up before the Tribunal on 6. 2.2025 when the court fixed the Landlord’s motion dated 6. 2.2025 for hearing on 21. 2.2025. On 21. 2.2025, the parties did not appear in court and the motion was fixed for hearing again on 27. 2.2025. On 27. 2.2025, the court allowed the Tenant’s motion as unopposed.

23. On 22. 5.2025, the court (Hon. Chege) made the following orders in the matter:-a.This matter be referred to the Tribunal chairman for further directions on 26. 5.2025 in respect of the place of trial.b.Tribunal files in E1071/2024, E1374/2024, E178/2024 and E553/2025 to be availed on the mention date for ease of reference by the Honourable Chairman.c.All the pleadings filed in the foregoing matters to be exchanged between the parties by close of business on 23. 5.2025.

24. The court issued its directions on 29. 5.2025 and pursuant to which this Ruling is being delivered.

25. It is therefore not in dispute that the Application dated 6. 2.2025 proceeded ex parte. The Tenant has denied that it was ever served with the said Application and to this end, a deeper examination of the proceedings and pleadings is necessary. This suit arises out of the Reference filed by the Landlord dated 21. 8.2024 wherein the Landlord complains against the Tenant in the following terms;-“You have failed to pay rent in time and that on expiry of the notice, we would like to occupy the premises for our own use for a period of not less than one year.”

26. The affidavit of service relevant to the same if the notice of termination of tenancy has been annexed to the Reference and at paragraph 2 and 3 thereof, the process server depones as follows;-SUBPARA 2-“That on 23rd August 2024, I received a notice under Section 4(2) of Cap 301 Laws of Kenya from the Landlord with instructions to serve the same upon the Tenant herein.”SUBPARA 3-“That on the said date accompanied by the Landlord’s agent one Mr. George, we proceeded to the Tenant’s place of business at Senteu Plaza, 1st Floor along Lenana road where we found one, the Tenant Director and who was pointed out to me by the Landlord’s agent and I introduced myself and purpose of my visit in their office and him and he accepted my service of the notice to terminate their tenancy but declined to sign on my principal copy returned to this court being duly served on the Tenant.”

27. The process server did not annex to his affidavit the notice of termination he allegedly served upon the Director of the Tenant and neither did he identify which director of the Tenant he specifically effected service upon. Indeed, I have perused the file and at least up and until the impugned orders were issued, the Landlord had not filed with the court the notice they were seeking to enforce. In these circumstances, the court did not have the advantage of seeing the notice.

28. The affidavit of service filed by Mr. Gibson M. Muli and which was relied on as evidence of service for the hearing of 27. 2.2025 is deponed to as follows at paragraph 2 and 3 thereof;SUBPARA 2-“That on 21. 2.2025 I received a hearing notice from the Applicant’s Landlord’s Advocates herein with instructions to serve the same upon the Tenant herein.”SUBPARA 3-“That on the said date at 3. 40pm accompanied by the Landlord’s agent one Mr. George, we proceeded to the Tenant’s business premises where we found one of the Director’s and whom I had previously served, served him with court documents and he accepted my service of the hearing notice but declined to sign on my copy returned to this court being duly served on the Tenant.”

29. Once again, the affidavit of service sworn by Mr. Gibson M. Muli does not in any specific manner identify the person who was served with the hearing notice. I think it is not enough to state or depone simply that “I served a director of the Tenant” without as much as stating who that director was. If indeed the process serve was accompanied by the agent of the Landlord as deponed, then it would be expected that the said agent would have more specifically identified the said/alleged director at least by name. I therefore do find merit in the Applicant’s submissions that service in this matter was defective.

30. The Tenant has also raised issue with the affidavit filed in support of the Application. I have perused the same and do note that the person who made the oath in the introductory part of the affidavit is one M/S Ajeetkumar C. Shah of Post Office Box Number 1478-00200 Nairobi and who has described himself as one of the Landlords in this matter. The Jurat of the same affidavit is sworn by M/S Kamalkumar C. Shah who is clearly a different party from the one in the introductory paragraph. The Landlord has not sworn any affidavit to make any clarifications to this grave error on its part and it is therefore doubtful whether the Application was supported by a proper affidavit and whether therefore, the Application as presented to court was competent at all.

31. From the above findings, I am satisfied that the Tenant has made a good case for the grant of the prayer sought that the orders as issued on 28. 2.2025 were irregular and I am further satisfied that the Tenant has made a good case for the revocation by the court of its powers under Section 12(1)(i) of Cap 301;“To vary or rescind any order made by the Tribunal under the provisions of this Act.”

32. The proceedings in BPRT Case No. E1071 of 2024 were initiated by the Tenant wherein the Tenant complained of illegal levy of distress by the Landlord. The proceedings in the instant suit touch on the termination of the Tenant’s tenancy pursuant to a notice to terminate issued under Section 4(2) of the Act. The proceedings brought by the Tenant in suit No. E1071 of 2024 have been brought under Section 12(4) of Cap 301 while the proceedings in this matter can only be undertaken by way of a Reference under Section 6(1) of the Act. Proceedings under Section 12(4) of the Act are not applicable while proceedings under Section 6 of the Act are applicable to the Lands & Environment Court. Both Sections present different causes of action of action and give rise to different consequences. In these circumstances, it would be improper to consolidate the two suits and the prayer for their consolidation is therefore declined.

33. The Tenant has also applied that the court directs the DCI to investigate issues surrounding the issuance of orders in BPRT E1071 of 2024 and BPRT E1374 of 2024. I do not think the Tribunal has any powers to make any such kind of an order if the Tenant is of the view that any crimes have been committed in the said matters to warrant intervention by the DCI by way of investigations and possible prosecution of any perpetrators, then al the Tenant has to do is to lodge his complaint with the DCI.Section 12(2) of Cap 301 in this regard, provides as follows;-“A Tribunal shall not have or exercise any jurisdiction in any criminal matter or entertain any criminal proceedings for any offence wither under this Act or otherwise.”

34. Although the Tenant has prayed that this suit be struck out, I have not found grounds upon which the same may be struck out.

35. On the issue of jurisdiction, it is my finding that in the circumstances of this case, the Tribunal has the jurisdiction to grant the orders sought as expressly provided for under Section 12(1)(i) of Cap 301.

Disposition 36. In disposing of this Application, I will therefore allow the Tenant’s Application in terms of prayer 3 thereof and set aside the orders issued by the court on 28. 2.2025. The Landlord’s motion dated 6. 2.2025 be set down for hearing in the usual manner. The Landlord will bear the costs of the Application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JUNE 2025HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Ms. Nkonge, Miss Oduor and Mr. Masake for the Tenant and Mr. Adiwor for the Respondent/LandlordCourt: Mention on 1. 07. 2025 for directions. Status quo will be maintained.HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNAL