Jobenpha Community School v Kimani

Tenant (Shops, Hotels and Catering Establishments) Act, herein referred to as ‘Cap 301’. Further, that pursuant to Section 12 of Cap 301, the BPRT has exclusive jurisdiction to determine disputes relating to controlled tenancies, including termination, eviction and possession. He avers that the Plainti’s claim, though couched as one of trespass and unlawful interference, in substance, is one contemplated under Section 12 of Cap 301. Response 3. The Plainti led Grounds of Opposition in response. It contends that the Preliminary Objection does not raise a pure point of law, it raises contested issues that call for ascertainment of facts by production of evidence. Further, that on the face of the pleadings, the existence of a controlled tenancy within the meaning of Cap 301 is not established. It also contends that its pleadings disclose a proper and sustainable cause of action against the Defendant, warranting full hearing and determination on merit by this Court, as the jurisdiction of BPRT does not extend to determination of complex questions relating to trespass, enforcement of proprietary rights, unlawful interference with possession and other equitable remedies sought. 4. The Preliminary Objection was canvassed by way of written submissions. Submissions 5. The Defendant submits that his Preliminary Objection is raised on jurisdiction, a pure point of law. He insists that the nature of the dispute as disclosed in the Plainti’s own pleadings demonstrates that no evidentiary inquiry is required for the Court to determine whether it has jurisdiction, as the Plainti expressly admits at paragraph 4 of its Plaint that its occupation of the suit premises arises from a Lease Agreement. Further, that the Plainti also admits that the dispute arises from proceedings and judgment issued in BPRT Case No. E1169 of 2025, which it alleges that it was not a party to, and that execution has unlawfully been directed against it, allegations intended to improperly invoke the jurisdiction of this Court and in attempt to evade the consequences of the BPRT’s judgment. He argues that even if the Plainti was not properly involved in the BPRT’s proceedings, the law provides sucient remedies, including review, an application for joinder and/or ling an Appeal against the BPRT’s decision. 6. He submits that the Plainti cannot rely on a Lease Agreement to justify occupation while simultaneously denying the applicability of Cap 301 and challenging proceedings and enforcement of the Decree arising from the BPRT. He contends that parties cannot evade statutory dispute resolution mechanisms through artful drafting. He urges the Court to determine jurisdiction based on the substance rather than the form of pleadings. Further, that from the face of the Plainti’s pleadings, the issue of trespass does not arise. He urges the Court to down its tools as the BPRT is clothed with jurisdiction to hear the dispute, under Cap 301. 7. To buttress his averments, he relied on the following decisions: Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR and Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment). 8. On its part, the Plainti submits that the Preliminary Objection is incompetent as it fails the legal threshold established in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, since it is entirely dependent on disputed factual allegations concerning; whether the present claim merely constitutes a tenancy dispute. Further, that the Defendant has not demonstrated the existence of a controlled tenancy within the meaning of Section 2 of Cap 301. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5487/eng@2026-09-21 2

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9. It also submits that the Defendant improperly attempts to reduce the present dispute into an ordinary tenancy dispute contemplated under Section 12 of Cap 301 while its concerns; trespass, possessory and proprietary rights, constitutional due process violations and the legality of execution against alleged non-parties, which the BPRT lacks jurisdiction to conclusively determine, thus the issues falls under this Court’s jurisdiction pursuant t0 Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. It urges the Court not to prematurely terminate substantive proceedings without proper evidentiary interrogation as Article 159 of the Constitution requires of it. 10. To buttress its averments, the Plainti relied on the case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling), among others which the Court has carefully considered. Analysis and Determination 11. I have considered the instant Notice of Preliminary Objection, Grounds of Opposition including rivalling submissions and the issue for determination is whether this Court has jurisdiction to determine this dispute and if the instant Preliminary Objection dated 5th May 2026 is merited. 12. The Defendant raised a Preliminary objection on the basis of jurisdiction. He argues that the dispute falls within Cap 301 which grants the BPRT exclusive jurisdiction over disputes concerning tenancies. He contends that the Plainti admits that its case is founded upon a Lease Agreement and alleges wrongful execution of a judgment rendered by the BPRT in BPRT Case No. E1169 of 2025. 13. On its part, the Plainti contends that the Preliminary Objection is incompetent because it is founded upon disputed facts, including whether its claim is merely a tenancy dispute, and if it was in a controlled tenancy, which issues require evidence. It argues that its case concerns trespass, unlawful interference with possession and illegal execution against a non-party, matters which it alleges fall outside the BPRT’s jurisdiction. 14. The Court is called to determine whether the Defendant’s Preliminary Objection raises a pure point of law or it is based on disputed facts as alleged by the Plainti. It is well settled that a Preliminary Objection must be on a pure point of law and cannot be raised if any fact has to be ascertained. This principle was well captured in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. 15. The Supreme Court also had occasion to state as follows on the same issue, in the case of Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR: “ Thus a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satised that there is no proper contest as to the facts.” 16. The Plainti contends that the dispute extends far beyond ordinary landlord/tenant relationship while the Defendant contends that it falls within the BPRT, a specialized Tribunal established under Cap 301. 17. It is settled that jurisdiction is everything and without it, a Court /Tribunal is called to down its tools. The Supreme Court stated as follows in the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR: “ A Court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5487/eng@2026-09-21 3

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law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….” 18. The jurisdiction of the BPRT is restricted to controlled tenancies and can also determine disputes touching on termination and possession. This Court will decipher whether the dispute herein falls under the BPRT. Section 2 of Cap 301 denes a controlled tenancy as follows: “ a tenancy of a shop, hotel or catering establishment- a. which has not been reduced into writing; or b. which has been reduced into writing and which- i. is for a period not exceeding ve years; or ii. contains provision for termination, otherwise than for breach of covenant, within ve years from the commencement thereof; or iii. relates to premises of a class specied under subsection (2) of this section..” 19. The Plainti has argued that its case raises issues of unlawful interference with possession and illegal execution against a non-party, which it alleges fall outside the jurisdiction of the BPRT and within this Court’s jurisdiction pursuant to Article 162(2) (b) of the Constitution and Section 13(1) of the Environment and Land Court Act. This Court takes judicial notice of the fact that the Tribunal in BPRT Case No. E1169 of 2025 had dealt with the issue of tenancy between the Plainti and Defendant. Further, the Plainti even led ELC Appeal No. E 035 of 2022 Bernard Oyugi t/a JOBENPHA School v Kenneth Kaunda Kimani (Suing as the Guardian of SAMUEL KIMANI KAROKI) where it sought to Appeal against the Ruling of the BPRT dated the 3rd February, 2020 wherein it had been denied leave to le a reference against the BPRT judgement. In the judgement of the Appeal, Justice E. K Wabwoto observed at paragraph 14 that it was not in dispute that the tenancy relationship between the Plainti and Defendant was a controlled one. I note the Plainti is now insisting that that the existence of a controlled tenancy within the meaning of Cap 301 has not been established. Further, that its pleadings disclose a proper and sustainable cause of action against the Defendant, warranting full hearing and determination on merit by this Court, as the jurisdiction of BPRT does not extend to determination of complex questions relating to trespass, enforcement of proprietary rights, unlawful interference with possession and other equitable remedies sought. 20. On perusal of the Plaint, I note the Plainti at its prayer No. (C) seeks a declaration that the enforcement of the judgement in BPRT Case No. E 1169 of 2025 against it, is unlawful, null and void. It is my considered view that the Plainti seeks to abuse the Court process by ling the instant suit yet there is already a valid judgement from the BPRT, which it acknowledges and only led this suit to circumvent its execution. 21. I have perused the judgement in BPRT E 1169 of 2025 and will proceed to reproduce an excerpt therefrom: “ The dispute has a long and winding history. The matter rst came before this Court as Tribunal Case No. 575 of 2017 and 43 of 2018, where the Landlord sought leave to levy distress for rent and recover outstanding arrears. Through a Ruling dated 31st July 2018, Hon. Mbichi Mboroki granted the Landlord the Orders sought and further ordered that the Tenant vacates the suit premises on or before 15th August 2018……….The matter resurfaced for the second time before the Tribunal in Case No. 132 of 2020 through Reference and Application led by the Tenant. The application was dismissed through a Ruling dated 28th March, 2022 with costs for lack of merit………………..Subsequently, Landlord led a Notice of Motion dated 5th May, 2o22 in Tribunal Case No. E 431 of 2022 seeking orders https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5487/eng@2026-09-21 4

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compelling the Tenant to surrender vacant possession of the suit property. The Tenant opposed the Application through a Replying adavit in which he relied on his earlier dismissed Reference and Application dated 3rd February, 2025……………At the same time the Tenant lodged an Appeal before the Environment and Land Court challenging the Ruling of 28th March, 2022. This Court directed that Tribunal Case No. E132 of 2020 and Tribunal Case No. 431 of 2022 be consolidated. Upon hearing of the consolidated matters, the Tribunal delivered a Ruling dated 27th April, 2023, nding that it had jurisdiction to order vacant possession and allowed the Landlord’s application. This Tribunal further ordered that the Tenant surrender vacant position within 60 days, failing which the Landlord was permitted to break in and take possession with assistance of the OCS Embakasi Police Station. The Tenant’s Appeal was subsequently dismissed with costs in ELC Appeal Case No. E 035 of 2022, through a Decree dated 25th July, 2024. …The Tenant once again approached the Tribunal through an Application dated 23rd December, 2024, seeking to restrain the Landlord from interfering with the tenancy…..Through a Ruling dated 8th April, 2025, Hon. Cyprian Mugabe struck out the suit of being res judicata and an abuse of the court process, dismissed the application with costs and ordered the le closed.” 22. From this excerpt, it seems to me that the Plainti after the dismissal of its claims in the Tribunal has now changed tact and now claims possessory rights over the suit premises. In the circumstances, I nd that this Court lacks the jurisdiction to hear and determine the suit as the dispute herein arises from a landlord- tenant relationship which falls within the jurisdiction of the Business Premises Rent Tribunal, pursuant to Section 12 of Cap 301, where the BPRT has exclusive jurisdiction to determine disputes relating to controlled tenancies, including termination, eviction and possession. In my view, the BPRT had already determined the dispute herein but the Plainti still seeks to sustain it by clothing it in dierent apparel but this won’t do. 23. In the foregoing, I nd the Notice of Preliminary Objection merited and will proceed to dismiss this suit with costs to the Defendant. DATED SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Kadenge for Plainti Jane Kimani (for Administrator of Estate) Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5487/eng@2026-09-21 5

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