[2025] KEBPRT 249 (KLR)

Wambugu v Karuna & 2 others (Tribunal Case E901 of 2024) [2025] KEBPRT 249 (KLR) (13 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 249 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E901 of 2024

P Kitur, Member

March 13, 2025

Between

Ephrahim Wambugu

Applicant

and

Peter Njeru Karuna

1st Respondent

Arena Homes

2nd Respondent

Silverline Auctioneers

3rd Respondent

Ruling

A. Parties 1. The landlord is the registered owner of the premise known as Plot No. W9 Muigai Inn and Bridgez Restraunt and Grill located on Thika Road, Juja Mall, wherein the Applicant runs states he runs a business. (hereinafter referred to as ‘the suit premises’).

2. The firm of Nyanchoka Okemwa & Company Advocates represents the 1st, 2nd and 3rd Respondents.

3. The firm of Gikunda Miriti & Company Advocates represents the Applicant.

B. Dispute Background 4. The Applicant approached this Honourable Tribunal on 20th August 2024 by way of a Complaint and an Application filed under a Certificate of Urgency of the same date. This was necessitated by the Landlord's act of instructing auctioneers to attach the Applicant’s movable property for an alleged outstanding rent of Kenya Shillings One Hundred and Twenty Thousand Five Hundred (Ksh. 120,500/=) plus auctioneers’ charges. Consequently, the Applicant sought orders inter alia compelling the Landlord to reopen the business premises and restraining the Respondents from interfering with the Applicant’s occupation until final determination of the matter.

5The Applicant, in his application, asserted that all rent due to the Landlord had been duly paid, thereby denying the existence of any arrears. Furthermore, he contended that the Landlord’s unilateral act of instructing auctioneers to seize his property without an order from this Honourable Tribunal was unlawful, as it contravened the provisions of the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301, Laws of Kenya (hereinafter referred to as "the Act").

6. Upon considering the Application dated 20th August 2024, this Honourable Tribunal, on 21st August 2024, issued interim orders directing the Landlord to, among others, re-open the Applicant’s business premises pending the hearing and determination of the Application inter partes.

7. In response, the 1st Respondent filed Replying Affidavit dated 14th October 2024. He maintains that the Applicant is a total stranger to the lease agreement and that he has never entered into any tenancy agreement, whether written or oral, with the Applicant herein, relating to the suit premises.

8. Additionally, the Respondents filed a Notice of Preliminary Objection dated 14th October 2024. They contend that the Applicant lacks locus standi to institute the present suit as he is not a tenant of the suit premises. The Respondents asserted that the lease agreement is exclusively between Cindem Investment Limited and the Landlord, thereby denying any direct tenancy relationship with the Applicant.

9. Conversely, the Applicant filed a Further Affidavit sworn on 22nd October 2024, wherein he contends that he has been in occupation of the suit premises as a tenant since 2020, following the departure of Cindem Investment Limited. He further asserts that he has consistently paid rent to the Landlord’s agent, the 2nd Respondent, who accepted such payments and treated him as a tenant.

10. As such the court on 17th October 2024, gave directions for the parties to file their submissions on the issue of locus standi and they complied.

11. The Preliminary Objection raised the following grounds: -i.That the Applicant lacks the requisite locus standi to institute this suit, as they are not the tenants of the suit premises which is owned by the 1st Respondent.ii.The tenant of the premises is Cindem Investment Limited, not Ephraim Wambugu as falsely claimed by the Applicant. The lease agreement is solely between the 1st Respondent and Cindem Investment Limited.iii.The Applicant, Ephraim Wambugu, is not a party to the lease agreement and therefore lacks the necessary privity of contract with the 1st Respondent. As such, the Applicant cannot seek to enforce the terms of the lease agreement or obtain any relief from this Honorable Tribunal.iv.This application is frivolous, vexatious and constitutes an abuse of the court process. It has no legal basis and serves only to waste judicial time and resources.

C. Issues for Determination 12. Upon a careful consideration of the Preliminary objection and submissions filed by the parties, the following issue arises for determination:i.Whether the Respondents’ Notice of Preliminary Objection dated 14th October 2024, is merited.

D. Analysis and Findings 13. In determining whether the Preliminary Objection dated 14th October 2024 meets the established legal threshold, it is crucial to first appreciate the definition and what constitutes of a Preliminary Objection in law.

14. In resolving this issue, I am guided by the well-established principles enunciated by the Court of Appeal in the seminal case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. In this decision, the court succinctly held that:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

15. Additionally, in the decision of the Justice prof J.B. Ojwang J (as he then was) he succinctly addressed the issue of preliminary objection in the case of Oraro vs Mbaja [2005] eKLR:“... It is identified as, and declared to be the 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. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”

16. From the foregoing, it is evident that for a Preliminary Objection to be sustained, it must satisfy the following strict legal criteria:i.It must raise a pure point of law;ii.It must be premised on the assumption that all facts pleaded by the opposing party are correct;iii.It cannot be sustained if the determination of facts is required or if the matter involves the exercise of judicial discretion.

17. Consequently, it is imperative to emphasize that a Preliminary Objection must be anchored on a well-settled and unequivocal point of law. Its application to undisputed facts must lead to only one inevitable conclusion—that the facts presented are legally incompatible with the point of law raised.

18. In the instant matter, the Respondents maintain that the Applicant lacks the requisite locus standi to institute this suit as he is not a tenant to the suit premise. Moreover, he is unknown to the lease agreement entered between the him and Cindem Investments Limited. He further argues that the Applicant is not shielded under the law of privity of contract, as such can not seek to enforce rights under the agreement.

19. This calls the tribunal to first determine whether the Respondent’s claim on locus standi meets the threshold discussed above on Preliminary Objection.

20. In this regard, I find guidance in the case of Law Society of Kenya Vs Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000, where Justice N.R.O Ombija stated as follows: -“Locus Standi signifies a right to be heard, A person must have sufficiency of interest to sustain his standing to sue in Court of Law.”

21. Further in the case of Julian Adoyo & another vs Francis Kiberenge Bondeva (2016)eKLR, Mrima J discussed the importance of locus standi stating:“A party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings…”

22. Consequently, locus standi denotes the legal right of a party to appear before and be heard by a court of law. Without this fundamental requirement, even a party with a meritorious claim is barred from accessing judicial relief. The significance of locus standi cannot be overstated, as its absence renders any claim or application before the court devoid of any legal foundation. Simply put, a party lacking locus standi has no legal standing to invoke the jurisdiction of the Court.

23. The 1st Respondent, in his Replying Affidavit dated 14th October 2024, vehemently asserts that the Applicant lacks the requisite locus standi to institute these proceedings. The crux of his argument is that the Applicant is a total stranger to the lease agreement executed between him and Cindem Investment Limited on 1st September 2021. To fortify this assertion, the 1st Respondent annexed a copy of the said lease agreement as evidence.

24. Conversely, the Applicant, in the Further Affidavit dated 22nd October 2024, does not dispute the existence of the lease agreement between the Landlord and Cindem Investment Limited. By this admission, the Applicant unequivocally acknowledges that he is fully aware of the tenancy arrangement and its legal implications. However, despite this awareness, the Applicant has failed to demonstrate any direct privity to the said lease agreement that would confer upon him the requisite locus standi to bring this matter before the Court.

25. Moreover, at no point has the Applicant stated or produced any evidence to suggest that Cindem Investment Limited has vacated the suit premises, purporting to terminate the lease agreement with the 1st Respondent. This fact remains undisputed and is crucial in determining the legitimacy of the Applicant’s claim. In the absence of any evidence indicating a change in the tenancy arrangement, the legal relationship between the 1st Respondent and Cindem Investment Limited remains intact, effectively precluding the Applicant from asserting any legal standing in these proceedings.

26. It is, therefore, abundantly clear that the Preliminary Objection on locus standi is well-founded, as it is based on undisputed facts. The legal consequence of a party lacking locus standi is akin to a court acting without jurisdiction—both scenarios render the proceedings null and void ab initio. This tribunal therefore finds that it lacks the jurisdiction to entertain this suit.

E. Orders 27. In light of the foregoing analysis, I accordingly make the following orders:a.The Preliminary Objection dated 14th October 2024 is merited.b.The Reference and Application dated 20th August 2024 is hereby struck out in their entirety for lack of locus standi.c.Costs are awarded to the Landlord assessed at Kshs. 20,000/=.d.File is marked as closed.

HON P. KITUR - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 13TH DAY OF MARCH 2025 IN THE PRESENCE OF MARAIATTE HOLDING BRIEF FOR GIKUNDA FOR THE TENANT AND NYANYOKA FOR THE RESPONDENTS.