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ELCDismissedNot stated in judgment· [2017] KEELC 1633 (KLR)

Erfan Rafique v Geofrey Mugambi Gituma [2017] KEELC 1633 (KLR)

Environment and Land Court
4 October 2017
LML.N. MBUGUA
310 words in judgment
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The bottom line

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A Kenyan court confirmed that long-term tenancy disputes belong in court, not the Cap 301 tribunal, and dismissed the tenant's attempt to stop the case.

What this practically means

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Executive summary

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The Defendant filed a preliminary objection on 4 May 2017 on three grounds: that the Environment and Land Court lacked jurisdiction because the dispute fell within the tribunal established under Cap 301; that granting the prayers sought would amount to eviction orders in breach of the rules of natural justice; and that consequently the suit should be struck out with costs. The court directed that the objection be argued by written submissions; the Plaintiff filed submissions but the Defendant did not, and the court proceeded to analyse the merits regardless. On jurisdiction, the court accepted the Plaintiff's submission that a controlled tenancy is defined in section 2 of Cap 301, and noted that the tenancy agreement between the parties provided for a term of five years and three months, taking the matter outside the tribunal's purview and rendering the suit properly before the Court. On the natural justice ground, the court held that it was not a pure point of law but one inviting argument on facts, and should have been raised as a ground of opposition to the application rather than as a preliminary objection. Both grounds having failed, the third ground (striking out) also failed. The preliminary objection was dismissed with costs to the Plaintiff. The judgment was delivered at Meru on 4 October 2017 by Hon. L.N. Mbugua, ELC Judge.

Key legal issues

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01

Jurisdiction vis-à-vis the Cap 301 tribunal

Holding

The Court has jurisdiction because the tenancy is not a controlled tenancy within Cap 301, the term being five years and 3 months

Reasoning

A controlled tenancy is defined under section 2 of Cap 301. The tenancy agreement between the parties, availed by the Plaintiff, provided for a term of five years and three months, which takes the dispute outside the scope of the Cap 301 tribunal. The court therefore found the suit properly before it and rejected the jurisdictional objection.

p. 2
02

Whether the natural justice ground is a proper preliminary objection

Holding

It is not; it depends on facts and should be raised as a ground of opposition to the application

Reasoning

The court applied the principle that a preliminary objection must be a pure point of law. The defendant's complaint that the orders sought would amount to unlawful eviction contrary to natural justice invites factual argument and therefore cannot be determined on a preliminary objection. The proper course is to raise it as a ground of opposition.

p. 2

Legal principles established

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  • Where a tenancy agreement stipulates a term exceeding the controlled tenancy threshold under Cap 301, the dispute falls outside the Cap 301 tribunal and is properly before the Court
  • A ground requiring argument on facts cannot be raised as a preliminary objection; it should be raised as a ground of opposition to the application

Court orders

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  1. 1.The preliminary objection dated 04.05.17 is dismissed
  2. 2.Costs of the preliminary objection to the Plaintiff

Authorities

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Legislation

  • Landlords and Tenants (Shops, Hotels and Catering Establishments) Act (Cap 301)section 2
Jurisdiction invoked
Jurisdiction of the Environment and Land Court over tenancy matters; objection that matter falls under the tribunal established under Cap 301 (Landslords and Tenants (Shops, Hotels and Catering Establishments) Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Erfan Rafique v Geofrey Mugambi Gituma [2017] KEELC 1633 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1633/eng@2017-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.