Benjamin Gerishom Murwayi v Translakes Limited & Demigen Auctioneers

Respondent moved the Appellant to Flat No. D301. Flat No. D301 had been vacated by another tenant, and the Appellant took possession before it was repaired and made tenantable. After moving to Flat No. D301, the 1 st Respondent started demanding from the Appellant a total sum of Kshs. 74,590/- for alleged repairs carried out on Flat No. D402 and Flat D301. The Appellant refused to make the demanded payment, arguing that he was not responsible for the repairs of the leaking roof of Flat No. D402 and the renovations and redecoration of Flat No. D301 that he was moved to. In the meantime, the Appellant paid the agreed rent to the 1st Respondent as and when it fell due. In response to the Appellant’s refusal to pay the said sum of Kshs. 74,590/- for the alleged repairs carried out by the 1 st Respondent, the 1st Respondent instructed the 2nd Respondent on 16th June 2022 to levy distress against the Appellant for the recovery of the said amount, pursuant to which the 2 nd Respondent levied distress against the Appellant’s movable goods, including his motor vehicle on the same date. On 29th June 2022, the Appellant filed the lower court suit challenging the 1st Respondent’s demand and the distress levied against him by the 2nd Respondent, terming the same ELCA NO. E102 OF 2024 JUDGMENT Page 2

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illegal. The Appellant sought an injunction to restrain the Respondents from levying distress against him, a declaration that he was up to date in his rent payment and that the claim for repairs made against him by the 1st Respondent and the subsequent distress were baseless and illegal. The Appellant also sought general damages for unlawful and illegal distress for rent and the costs of the suit. The Respondents entered an appearance on 13 th July 2022 and filed a Notice of Preliminary Objection on 15 th September 2022. I have not seen any defence on record. In their preliminary objection, the Respondents contended that the lower court lacked jurisdiction to handle the Appellant’s suit because the dispute involved a landlord and tenant of residential premises and, as such, could only be handled by the Rent Restriction Tribunal established under the Rent Restriction Act, Chapter 296 of the Laws of Kenya. The Respondents sought the dismissal of the Appellant’s suit. The lower court disposed of the preliminary objection through written submissions. The Respondents filed submissions dated 26th October 2022 in which they relied on the definition of a controlled tenancy under the Landlord and Tenant (Shops, ELCA NO. E102 OF 2024 JUDGMENT Page 3

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Hotels and Catering Establishments) Act, Chapter 301 of the Laws of Kenya (sic) and argued that since the tenancy between the Appellant and the 1st Respondent was for a period not exceeding 5 years, the same was a controlled tenancy and as such any dispute between the parties could only be determined by the tribunal. In his submissions in reply dated 1 st November 2022, the Appellant argued that the tenancy between the Appellant and the 1st Respondent was over a dwelling house in respect of which the monthly rent was Kshs. 30,000/-. The Appellant submitted that such a tenancy did not fall under the Rent Restriction Act. The Appellant argued that the controlled premises under the Rent Restriction Act were dwelling houses whose monthly rent did not exceed Kshs. 2,500/-. The Appellant argued that the Rent Restriction Tribunal had no jurisdiction over the dispute and that the parties were properly before the court. In a ruling dated 13th March 2023 and delivered on 17th March 2023, the lower court upheld the Respondent’s preliminary objection and struck out the Appellant’s suit with costs. In the ruling, although the lower court appreciated that the objection was raised under the Rent Restriction Act, Chapter 296 of the ELCA NO. E102 OF 2024 JUDGMENT Page 4

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Laws of Kenya, it adopted the definition of a controlled tenancy under section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 of the Laws of Kenya. The lower court held that because the lease between the Appellant and the 1st Respondent was for 1 year, it was a controlled tenancy and, as such, any dispute arising from it could only be determined by the tribunal established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The Appellant was aggrieved by the lower court's decision and preferred the present appeal. In his Memorandum of Appeal dated 13th April 2023, the Appellant challenged the lower court’s ruling on the grounds that the court failed to properly evaluate the evidence before it so as to appreciate the nature of the tenancy that it was dealing with and the applicable law; that the court misdirected itself when it found that it had no jurisdiction to determine the suit before it; that the court erred in dismissing the entire suit while there were other issues relating to the distress for rent which could only be determined by the court; and that the orders issued by the court were draconian and lacked proper legal basis. The Appellant prayed ELCA NO. E102 OF 2024 JUDGMENT Page 5

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that the appeal be allowed, the ruling and orders of the lower court be set aside and substituted with an order dismissing the Respondents’ preliminary objection with costs. The Appellant also prayed for the reinstatement of the lower court suit and the costs of the appeal. The appeal was heard by way of written submissions. The Appellant filed submissions dated 7th July 2025. The Respondents failed to file submissions as directed by the court. Analysis and determination I have considered the pleadings and the proceedings of the lower court, the ruling of the court, the grounds of appeal by the Appellant, and the submissions by the Appellant. In my view, the appeal raises only one issue for determination: whether the lower court erred in upholding the Respondents’ preliminary objection and striking out the Appellant’s suit. In Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others [2014] eKLR, the Supreme Court stated as follows on preliminary objections: “To restate the relevant principle from the precedent setting case, Mukisa Biscuit Manufacturing Co. Ltd. Vs West End Distributors (1969) EA 696. ELCA NO. E102 OF 2024 JUDGMENT Page 6

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‘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 …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 exercise of judicial discretion.” In Oraro v. Mbaja[2005]1KLR141, the court stated that: “A preliminary objection correctly understood is a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be 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 agree with the Appellant that the Respondents' preliminary objection to the lower court suit had no merit. It is not disputed that the Appellant and the 1 st Respondent entered into a ELCA NO. E102 OF 2024 JUDGMENT Page 7

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tenancy agreement in respect of a dwelling house for one year, with effect from 1st November 2020, and that the agreed monthly rent was Kshs. 30,000/-. The premises were not business premises and, as such, the Respondents' and the court's reference to the definition of a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act was misplaced. The premises let to the Appellant did not also fall under the Rent Restriction Act, Chapter 296 of the Laws of Kenya. The monthly rent of Kshs. 30,000/- paid by the Appellant took it out of the Act's application. Section 2(1) of the Act provides that the Act does not apply to dwelling houses where the standard rent exceeds Kshs. 2,500/- per month. The lower court did not inquire into the standard rent for the premises. The rent agreed by the parties must be assumed to be the standard rent unless the tribunal determined or assessed a different rent as the standard rent. On this issue, I accept the decisions on which the Appellant relied in his submissions. Due to the foregoing, it is my finding that the lower court erred in upholding the Respondents’ preliminary objection. The ELCA NO. E102 OF 2024 JUDGMENT Page 8

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preliminary objection had no basis and should have been dismissed. In conclusion, I find merit in the Appellant’s appeal and make the following orders: 1. The ruling and orders made by the lower court on 17 th March 2023 allowing the Respondents’ preliminary objection dated 14th September 2022 and striking out the Appellant’s suit are set aside and substituted with an order dismissing the Respondents’ preliminary objection with costs to the Appellant. 2. The Appellant’s suit in the lower court is reinstated for hearing and determination on merit. 3. The Appellant shall have the costs of the appeal. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this 28th day of September 2026 E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Platform in the presence of: ELCA NO. E102 OF 2024 JUDGMENT Page 9

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N/A for the Appellant N/A for the 1 st and 2nd Respondents Joanne Omondi -Court Assistant ELCA NO. E102 OF 2024 JUDGMENT Page 10

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