[2024] KEBPRT 419 (KLR)

Abdalla & Mohammad Brothers v Saddi t/a Kadunguni Pharmacy Limited (Tribunal Case E230 of 2023) [2024] KEBPRT 419 (KLR) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 419 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E230 of 2023

M Makori, Member

February 2, 2024

Between

Abdalla & Mohammad Brothers

Applicant

and

Alex Munga SaddiT/A Kadunguni Pharmacy Limited

Respondent

Ruling

1. The present claim was filed vide an application dated 11th September 2023 supported by the supporting affidavit of Majid Said Salim.

2. In response the landlord filed a Replying affidavit dated 19th October 2023 denying the claims made and disputing the court’s jurisdiction and the locus standi of the plaintiff in this case.

3. From the totality of the pleadings filed by parties and submissions several issues arise for determination. In arriving on a determination on the matter I am required to determine the following issues:-a.Whether the applicants have the legal capacity to sue and be sued.b.Whether this honourable court has jurisdiction to hear and determine this suit.c.Whether the applicant is entitled to the reliefs sought.d.Who is liable to pay costs?a.Whether the applicants have the legal capacity to sue and be sued.

4. According to the application dated 11th September 2023 filed before this tribunal lower court. The applicant describes himself as Abdalla & Mohammad Brothers. The respondent entered appearance and in their replying affidavit denied that the applicant has the legal capacity to sue and be sued in its own name.

5. It is a trite point of law that only parties to a Contract can demand fulfilment of obligations under the Contract from the other party.

6. In the case of Maurice Ooko Otieno v Mater Misericcordiae Hospital [2004] eKLR the court in discussing the issue of capacity to sue and be sued, observed as follows:“The law requires that a suit be brought against a legal entity. This is an individual, a Limited Liability Company, the Attorney General – on behalf of government department, certain parastals and or co-operations. Mater Misericodiae Hospital has not been described as a limited liability company. It therefore has no legal capacity to be sued. The plaintiff required to find out what the status of the said hospital is.”

7. In Apex Finance International Limited and Another v Kenya Anti-Corruption Commission NKU HC JR No. 64 of 2011 [2012]eKLR, the court cited a decision of the Supreme Court of Nigeria, Goodwill and Trust Investment Ltd and Another v. Witt and Bush Ltd Nigerian SC 266/2005 the court stated that;-“It is trite law that to be competent and have jurisdiction over a matter, proper parties must be identified before the action can succeed, the parties to it must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the court the court lacks jurisdiction to hear the suit, and, “where the court purports to exercise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.”

8. In this case a look at the lease agreement dated 5th day of April 2017 attached shows that the agreement was made between Abdalla & Mohammad brothers and Ale Munga saddi T/A Kadunguni Pharmacy. This affirms the position that indeed the same party to the agreement has brought the suit before this tribunal.

9. The tribunal is spiked by the fact that the issue on capacity had not been raised at the time of signing of the contract but at the time of filling of the suit.

10. That if indeed the capacity of the applicant in this case is questionable the tribunal is inclined to indeed consider such analysis as procedural technicalities and the same should be avoided as enumerated under The Constitution 2010, Article 159(1) and 159(2)(d):Article 159(1) of the Constitution stipulates that judicial authority is derived from the people, and is to be vested in, and exercised by Courts.

11. Article 159(2) provides the guidelines, as to the mode of discharge of such judicial authority.Article 159(2)(d) of the Constitution enjoins the Courts to exercise judicial authority, and to administer justice without undue regard to procedural technicalities.b.Whether this honourable court has jurisdiction to hear and determine this suit.

12. Section 12(4) of cap. 301, Laws of Kenya confers this Tribunal jurisdiction to investigate any complaint relating to a controlled tenancy made to it by the landlord/tenant and make such order thereon as it deems fit. As such, the first qualification as earlier observed is that there must be in existence a landlord and tenant relationship.

13. I have looked at the tenant’s replying affidavit dated 19th October 2023 wherein it is contended that there exists an agreement for a period of Five years and three months dated 27th February 2023 and the said agreement is titled North coast developers limited a party that the tenant does not make explanation of its existence and relation to the case however it’s worth noting that the landlord therein is indicated as Majid said one of the parties claiming to be under the landlord’s umbrella.

14. The agreement has only been signed by one party-the tenant/respondent and a stamp and sign of a claimed lease John Murira from Northcoast Homes Developers Limited a non-related party to this suit.

15. The agreement has also been signed on the 27th of February 2023 but purports to issue obligations to the parties on the tenancy from the 1st of February 2023. The applicant has denied the existence of such contract and claims that the tenancy relations exists without any written agreement after the termination of the previous lease agreement.

16. Reference is made to section 109 of the Evidence Act, Cap. 80, Laws of Kenya:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person”.25Section 107(1) of the same Act provides that:-“(1)whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

17. I am not convinced that the tenant has tendered sufficient proof that he got into another five year and 3 months contract with the landlords and/or his representatives for the suit premises.

18. Having made the analysis that there exists no contract between the parties this tribunal finds that the said tenancy can therefore be classified as a controlled tenancy as envisaged Under section 2(i) of Cap 301, where a controlled tenancy means a tenancy of a shop, hotel or catering establishment;a)Which has not been reduced into writing ORb)Which has been reduced into writing and which;i.Is for a period not exceeding five years ORii.Contains provision for termination otherwise than for breach of covenant within five years from the date thereof ORiii.Relates to premises of class specified under subsection (2) of this section.

19. 1 also associate myself with the decision in the case of Al-Riaz International Limited Vs Ganjoni Properties Ltd [2015] eKLR where at page 7, the court stated;“In my view, the provisions of section 2 of Cap 301 are clear. That if a tenancy satisfied any of the conditions provided at section 2, the tenancy automatically becomes a controlled one and subject to the provisions of Cap 301…”

20. On the application dated 11th of September 2023 the respondent does not dispute the rent arrears as alleged neither has he filled any document to prove payment or deny the allegations therein and as such the evidence put forth remains uncontroverted.

21. The applicant has indeed attached a copy of a notice to terminate issued to the tenant on the 24th of April 2023 and although the tenant has filed a Memorandum of understanding of payment that indicates the payment terms and conditions thereto he does not show or seek to proof that he has indeed fulfilled the terms.

22. This tribunal finds that it would be an injustice occasioned to the applicant/landlord if the said tenant is left to seek protection to an agreement to which he has not fulfilled further the said Memorandum of understanding permits the landlord/Applicant to seek redress.

23. In the upshot and based on the foregoing the Tribunal finds that the reference by the Landlord is merited and makes the following orders; -i.The Applicant’s reference and notice of motion Application dated 11th September 2023 are hereby allowed.ii.The tenant shall pay the arrears of the tenancy being Kenya shillings three hundred and twelve thousand (312,000) as at August 2023 and Kenya shillings Forty thousand (40,000) being rent arrears for the month of August to November within 30days failure to which the landlord shall be at liberty to remedy for distress.iii.I exercise my discretion to grant the respondent 60 days from today within which to vacate the premises failure to which the Landlord will be at liberty to evict them with the assistance of the OCS Mtwapa Police station.iv.Each party to bear their own costs of the application.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF FEBRUARY 2024. HON. MIKE MAKORIMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Ms. Katama holding brief for Mr. Lewa for the Respondent.No appearance by the Applicant