James Njuguna Nambura & another v Geoffrey Kamau Waweru & 2 others [2020] KEBPRT 63 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 56 OF 2018 (KIAMBU)

JAMES NJUGUNA NAMBURA...............................TENANT/1^ST APPLICANT

LAWRENCE WANJOHI THIGITI..........................TENANT/2^ND APPLICANT

VERSUS

GEOFFREY KAMAU WAWERU...................LANDLORD/1^ST RESPONDENT

PETER KABUI KAMAU...............................HEAD-LANDLORD/2^ND TENANT

DAVID KINYANJUI KAMAU............HEAD-LANDLORD/3^RD RESPONDENT

RULING

The subject matter of this ruling is the 1^st Respondent/Landlord’s preliminary objection dated 18^th September 2018.  The Tenant/Applicant filed grounds of opposition to the preliminary objection on 25^th September 2018.

The advocates of the parties have made oral submissions in respect of the preliminary objection which are on record.  The 1^st Respondent/Landlord’s preliminary objection is supported by the advocate for the 2^nd and 3^rd Respondents.  The law in respect of a preliminary objection is more or less settled.  A preliminary objection must be based on admitted facts and not facts which require evidence to be taken or to be investigated by the Tribunal (Mukisa Biscuit Case 1969 EA 696).

The parties to the application before the Tribunal agreed on the following facts;

1. That the suit premises has been destroyed by fire and does not exist.

2. What the parties do not agree on is the effect of the destruction of the said premises on the issue of the jurisdiction of the Tribunal.

The Tribunal does not find it difficult to resolve the issue.  In the terms and conditions to be implied in tenancies at page 15 of Cap 301 condition (ii) provides as hereunder;

“That where the premises are destroyed by fire and civil commotion or accident through no negligence on the part of the lessee, any liability to pay rent be suspended until the premises are again made fit and habitable.”

It is clear from the above that destruction of premises by fire does not terminate a tenancy.  Whether the premises can be made tenantable again is an issue of evidence and not pure law.

In the light of the above facts, the 1^st Respondent/Landlord’s preliminary objection dated 18^th September 2018 has no merits.  The Tribunal makes the following orders;

1. The 1^st Respondent/Landlord’s preliminary objection dated 18^th September 2018 is hereby dismissed.

2. The costs of the preliminary objection shall abide the outcome of the application dated 31^st July 2018.

3. The Tenant/Applicant shall fix the hearing date of the application dated 31^st July 2018 at the registry on priority basis.

Ruling dated and delivered this 12^th day of June 2020 in the presence of Kimani for the Tenant/Applicant.  Advocate for the Respondent absent.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL