Mungai & another (Both Trading as Brookhub Senior School) v Njiri & 2 others (Tribunal Case E224 of 2024) [2024] KEBPRT 1748 (KLR) (13 December 2024) (Ruling)

Mungai & another (Both Trading as Brookhub Senior School) v Njiri & 2 others (Tribunal Case E224 of 2024) [2024] KEBPRT 1748 (KLR) (13 December 2024) (Ruling)

1.The tenants approached the Tribunal by filing the notice of motion dated 16th February, 2024. The application sought for a plethora of orders but principally wanted to restrain the landlady from levying distress. The application was premised on the grounds set out on the face of the application and those enumerated in the supporting affidavit sworn by the 2nd Applicant.
2.The respondents are opposed to the application and filed a notice of preliminary objection dated 28th February, 2024 stating that the lease was for a period of six years hence the Tribunal was divested with the jurisdiction to determine the dispute. The respondents having raised the issue of jurisdiction, the Tribunal is required to satisfy itself that it has the necessary jurisdiction for the reason that any proceedings in this matter in the absence of jurisdiction would be a nullity and an exercise in futility. The parties were directed to canvass the application and the preliminary objection by way of written submissions.
3.The Tribunal has considered the application, the responses thereto and the submissions on record. The first issue for determination is whether the preliminary objection is merited.
4.It has been held repeatedly by courts that a preliminary objection should raise a pure point of law which requires no evidence to be adduced. In Mehuba Gelan Kelil & 2 others vAbdulkadir Shariff Abdirhim & 4 others [2015] eKLR Gikonyo J. rendered himself thus:I need not re-invent the wheel. It is trite law that a preliminary objection should be based on pure points of law which do not require copious probing of evidence in order to ascertain.See the opinion by Law JA on this point in the case of; Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 when he rendered himself thus:“So far as I’m 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 the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”Similarly Sir Charles Newbold in the same case stated that:“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop.”
5.The question arising therefore is whether the relationship between the Tenant and the Landlord is subject to cap 301.Under Section 2(i) of Cap 301, a controlled tenancy means a tenancy of a shop, hotel or catering establishment;a)Which has not been reduced into writing orb)Which has been reduced into writing and which;i.Is for a period not exceeding five years orii.Contains provision for termination otherwise than for breach of covenant within five years from the date thereof oriii.Relates to premises of class specified under subsection (2) of this section. (Emphasis mine)
6.I have however seen the lease agreement annexed to the affidavit of the Landlord sworn on 2.8.2024. The said lease is for a period of six (6) years commencing 1.1.2019. The term of the lease is bolded in the agreement which was produced and relied on by none- other than the tenants. I have perused the lease agreement and it does not contain a provision for termination otherwise than for breach of covenant within five (5) years from the commencement thereof. Consequently, the lease agreement between the parties did not give rise to a controlled tenancy as described at Section 2 of CAP 301. That this lease period places the tenancy herein outside the jurisdiction of the Tribunal as it exceeds the five years period/term provided for under section 2(a) (1) of Cap 301 of the Laws of Kenya.
7.The upshot of the above is that the following orders commend itself:i.The respondents’ Preliminary Objection dated 28th February, 2024 is hereby upheld.ii.The Tenants’ Application dated 16th February, 2024 is hereby dismissediii.Costs are awarded to the respondents assessed at Kshs. 30,000/=iv.File is marked as closed.
HON. PATRICIA MAYMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually this 13th day of December 2024 in the presence of Amuga for the Respondents and No Appearance for Tenants/ApplicantHON. PATRICIA MAYMEMBERBUSINESS PREMISES RENT TRIBUNAL
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