Shah & 2 others v International Electricals (K)Limited (Environment and Land Case E205 of 2024) [2025] KEELC 7377 (KLR)

period contemplated under Section 4(4) of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act. 4. The Defendant raised a Preliminary Objection challenging the jurisdiction of this court to hear and determine the dispute. 5. The preliminary objection was canvassed by way of written submissions. The Defendant’s Submissions 6. The Defendant filed its submissions dated 19th May 2025. 7. On behalf of the Defendant, Counsel submitted that the landlord’s notice dated 20th March 2024, which the Plaintifi is seeking to enforce ofiends Section 4 (4) of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act. It was further submitted that the notice is incurably defective and is not enforceable by the Tribunal or by this Honourable Court. The Plaintifis Submissions 8. The Plaintifis filed their submissions dated 3rd June 2025. 9. On behalf of the Plaintifis, Counsel submitted that the Preliminary Objection is not based on a pure point of law as the court would have to look into the pleadings to determine whether the notice is defective. Counsel maintained that the Notice was compliant with the law. Counsel relied on the case of Oraro v Mbaja (2015) eKLR 141. Analysis And Determination 10. The law on preliminary objections is well settled. A preliminary objection must be on a pure point of law. 11. In Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd (1969) EA 696, Law JA stated as follows:“ 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 submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 12. Further on Sir Charles Newbold JA stated; “ 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 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 had 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. The improper practice should stop.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7377/eng@2025-10-24 2

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13. In Oraro v Mbaja (2005) eKLR Ojwang J (as he then was) described it as follows; I think the principle is abundantly clear. “A Preliminary Objection” correctly understood is now well identified as, and declared to be 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. An assertion which claims to be a Preliminary Objection and yet it hears 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.” 14. For a preliminary objection to be valid, it must be on a point of law and must be founded on facts that are not in dispute. It should not be proved through facts or evidence or deal with disputed facts. 15. The Defendant’s objection is premised on the allegation that the notice issued by the Plaintifis is invalid as it ofiends Section 4 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, which clearly provides for the requirements of a tenancy notice and termination of a controlled tenancy. 16. To ascertain the Defendant’s allegation on the Notice issued by the Plaintifi seeking to terminate his tenancy did not comply with Section 4(4) of the Landlord and Tenants (Hotel and Catering Establishment Act) the notice period under the aforementioned provision, the court would have to examine the evidence to determine facts, including the actual date the notice was served and whether the two-month period was observed. This would mean that it would go beyond the scope of a pure point of law as defined in the aforementioned case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] 1 EA. 17. It is not in dispute that the tenancy between the parties is a controlled tenancy as defined under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. 18. Section 4(4) of the aforementioned Act provides that if the tenant does not challenge the notice by way of a reference to the Tribunal within one month, the tenancy is deemed terminated as per the notice. Since the Tribunal’s jurisdiction is invoked only upon the filing of a reference in response to a termination notice the Plaintifi is in my view, at liberty to approach this Court to enforce its proprietary rights. 19. In the end, I find that the preliminary objection is devoid of merit and the same is hereby dismissed. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 24 TH DAY OF OCTOBER, 2025. .............................. T. MURIGI JUDGE In The Presence Of:Ms Ithondeka for the Plaintifi Mburukwa holding brief for Kinyua for the Defendant Ahmed – Court assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7377/eng@2025-10-24 3

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