Juma v Hassan & Sora & 3 others (Tribunal Case E010 of 2025) [2025] KEBPRT 411 (KLR) (Civ) (16 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 411 (KLR)
Republic of Kenya
Tribunal Case E010 of 2025
N Wahome, Chair & Joyce Murigi, Member
September 16, 2025
Between
Jamila Masoud Juma
Applicant
and
Ali Hassan & Hassan Sora
1st Respondent
Bannister Kilonzo
2nd Respondent
Hussein Ali
3rd Respondent
Nicholas Mutinda
4th Respondent
Ruling
1.This ruling is on both the Applicants notice of motion application dated the 25th July,2025 and also on the respondents notices of preliminary objection dated the 4/07/2025 and the 25/07/2025.The application was founded on Section 12[4] of the Landlord And Tenant [shops, Hotels And Catering Establishments] Act, CAP 301 hereinafter referred to as “the act”. The Application sought for the following reliefs;-i.That the Applicant has no locus standi to institute this suit having failed to demonstrate any legal or equitable interest in the suit property known as Machakos Town Block No.11/141, which is registered in the name of Machakos Jamia Mosque Association, a district legal entity.ii.That the suit is incompetent, misconceived and bad in law as there exists no contractual, proprietary or fiduciary relationship between the Applicant and the Respondents to found a cause of action.iii.That the Applicant’s claim is based on alleged personal rights or inheritance from her late father who was merely an official [secretary] of the said Association, and therefore the Applicant is attempting to enforce non-existent personal rights over property belonging to a registered association.iv.That the Respondents have valid and existing contractual relationships with the Machakos Jamia Mosque Association, and not with the Applicant, rendering the Applicant a stranger and busybody in law who lacks standing to challenge such lawful occupancy or usage.v.That the Applicant’s pleadings are an abuse of court process, as they mislead the court by presenting a false claim of ownership, contrary to official land registry records and without joining the Machakos Jamia Mosque Association as a necessary party.vi.That the suit is fatally defective for non-joinder of a necessary party, to wit, Machakos Jamia Mosque Association which is the registered proprietor of the land, and in whose name the title is held, in contravention of Order 1 Rule 10[2] of the Civil Procedure Rules.vii.That the Application and suit disclose no reasonable cause of action against the Respondents and ought to be dismissed at the earliest opportunity with costs to the Respondents.
2.On the other hand, the respondents notice of preliminary objection dated 4/7/2025 sought for the following orders;-i.That this honourable Tribunal lacks jurisdiction to hear and determine this matter for lack of Landlord/Tenancy relationship and also purporting to Mitigate on ownership of the property.ii.That there is no suit before the Tribunal worth determination.iii.That the Applicant’s matter before the Tribunal is scandalous, vexatious and an abuse of the court process and should be dismissed in Limine with costs.
3.On the other hand, the notice of preliminary objection dated 25/07/2025 sought for dismissal of the applicants suit and the said notice of motion for want of jurisdiction on the following grounds inter alia;-a.That the Applicant has no locus standi to institute this suit having failed to demonstrate any legal or equitable interest in the suit property known as Machakos Town Block No.11/141, which is registered in the name of Machakos Jamia Mosque Association, a distinct legal entity.b.That the suit is incompetent, misconceived and bad in law as there exists no contractual, proprietary or fiduciary relationship between the Applicant and the Respondents to found a cause of action.c.that the Applicant’s claim is based on alleged personal rights or inheritance from her late father who was merely an official [secretary] of the said Association, and therefore the Applicant is attempting to enforce non-existent personal rights over property belonging to a registered association.d.that the Respondents have valid and existing contractual relationships with the Machakos Jamia Mosque Association, and not with the Applicant, rendering the Applicant a stranger and busybody in law who lacks standing to challenge such lawful occupancy or usage.e.that the Applicant’s pleadings are an abuse of court process, as they mislead the court by presenting a false claim of ownership, contrary to official land registry records and without joining the Machakos Jamia Mosque Association as a necessary party.f.That the suit is fatally defective for non-joinder of a necessary party, to wit, Machakos Jamia Mosque Association which is the registered proprietor of the land, and in whose name the title is held, in contravention of Order 1 Rule 10[2] of the Civil Procedure Rules.g.that the Application and suit disclose no reasonable cause of action against the Respondents and ought to be dismissed at the earliest opportunity with costs to the Respondents.
4.It is in our considered view that a resolution on the issue of Jurisdiction is given due priority in our determination herein. It is trite that jurisdiction is everything and without it a court of law down its tools and do no more in such a matter. In the locus classicus case of; The Owners of Motor vessel “Lillian S” v Caltex Oil [Kenya] Ltd[1989]eKLR where Justice Nyarangi J.A as he then was held that;-
5.The Jurisdiction of this court is conferred to it by the statute and that is Cap 301. Section2[1], [a], [b][i], [ii] and [iii] thereof which provides that;
6.The act also defines a tenancy as;-
7.It also defines a tenant as;-
8.Further the act defines a landlord as;-
9.From the evidence on record, there is nothing to show that either the respondents or Machakos Jamia Mosque Association have ever been paying any rent on the demised premises to either the applicant’s late father in his life or to the applicant or her family for that matter since his death in the year 2021.The certificate of lease herein also names the applicant’s late father and those of another two persons as the registered trustees thereof in trust for Machakos Jamia Mosque Association. There is no known legal interest registered against the said certificate of lease in favour of the applicant’s late father or those of the other two trustees.
10.That being the case, we are doubtful that the applicant is the landlord nor that the respondents are her tenants or that they share in any interest over the said premises. Clearly the applicant has failed to show any nexus between the property known as Machakos Town Block 11/141 and her deceased father to allow her be the respondents landlord or to have any interest over the said property. The applicant’s father may have had some benefits accruing to him in his life as the Hon secretary to Machakos Jamia Mosque Association but such benefits cannot find legitimacy in law and cannot therefore be enforceable.
11.Without a landlord and tenant relationship as is the case here, this court may not have the wherewithal to superintend over the issues herein. More so for the reason that the bearer of the greatest interest herein M/s Machakos Jamia Mosque Association have been left out of these proceedings. We are therefore unable to appreciate the logic that led the applicant to leave out the mosque when well aware of its registration as the leaseholder. She must have avoided it from appearing before this court and rightfully asserting their rights over the property housing the demised premises herein.
12.In our respectful view, the applicant if interested in pursuing justice in this matter, she should have invoked the jurisdiction of the probate and administration court or the environment and land court. Otherwise this court is called upon in the circumstances of this case to find that it has to jurisdiction to adjudicate over this matter and therefore down its tools and do no more. In this, we find reliance in the celebrated case of;-Pritam v Ratilal and Another,Nairobi HCCC No. 1499 of 1970 [1972] EA 560 where it was stated as follows:-“Therefore the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a Tribunal; otherwise the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction.”
13.From the foregoing, we would not wish to belabour all the other issues raised by the parties and would proceed to uphold the notices of preliminary objections dated the 4/07/2025 and the 25/07/2025 and strike out both the reference and the notice of motion application dated the 27/05/2025. We however do not know the wisdom of the respondents in filing the two notices of objections as they raised the same issues albeit in different version.
14.On the issue of costs, we do appreciate that the respondents are the successful parties and in compliance with the wisdom of Section 12[1]K of the Act, we award costs to them.
Disposition
15.In the final analysis, the orders that commend to us are the following;[a]That the notices of preliminary objections dated 4/07/2025 and the 25/07/2025 are upheld.[b]That the Reference and the notice of motion application both dated 27/05/2025 are struck out.[c]That the Applicant shall pay to the Respondents costs assessed at Kshs 50,000/-.Those are the orders of the court.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2025.NDEGWA WAHOME, MBS,PANEL CHAIRPERSON,*BUSINESS APREMISES RENT TRIBUNAL.ANDHON JOYCE MURIGI,MEMBER,BUSINESS APREMISES RENT TRIBUNAL.Delivered in the presence of M/S Kirigo for the Applicant/Landlord and M/S Wagema holding brief for M/S Ali for the Respondents