[2021] KEBPRT 383 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 166, 167 AND 168 OF 2019 (MOMBASA)

ABDI GEDI AMIN

HAWA LUL BASHIR

HUSSEIN ABDULHADI........................................TENANTS/APPLICANTS

VERSUS

JABER MAHFUDH OMAR.............................LANDLORD/RESPONDENT

RULING

The Tenants/Applicants have filed a notice of preliminary objection dated 31st October 2019on the following grounds;

1. That this Tribunal lacks jurisdiction to hear and determine the reference and to give effect to the Landlord’s notice dated 21st February 2019 for the reasons that the Landlord/Respondent is deceased and as such lacked locus standi to issue the statutory notice aforementioned.

2. That the Landlord being a deceased person was incapable of issuing the aforesaid notice to the Tenants and the same has thus been issued by a busy body without locus standi.

3. That this tribunal lacks jurisdiction to hear and determine this reference and in particular pertaining to the Landlord’s notice dated 21st February 2019.

4. That the entire notices by the Landlord are incompetent, fatally and incurably defective for failing to comply with the mandatory provisions of the Law of Succession Act and Cap 301.

5. That the Landlord’s notice ought to be struck out with costs to the Respondent.

On 20th May 2021, the court directed that the notice of preliminary objection would be argued by way of written submissions. Counsel for the parties have filed their respective submissions and which I proceed to summarize as follows;

The Tenant’s Submissions were/are to the Effect;

1. That the Landlord’s notice dated21st February 2019was issued on behalf of a deceased person by persons who have no locus standi.

2. That the notice does not comply with the provisions of the Succession Act and Cap 301 of the Laws of Kenya.

3. That the said notice purports to have been issued by the Estate of the deceased Jaber Mahfudh. However, no grant of representation has been issued or even attached to show the current administrators of the estate or under whose instruction the notice has been issued.

4. That the persons purporting to issue the notice on behalf of the estate are intermeddling.

5. That section 4 of Cap 301 requires that such notice be issued by the Landlord, the Landlord herein being deceased, the notice could only have been issued by the duly appointed administrator of the estate of the deceased. The notice is therefore defective for having been issued by persons who are not administrators of the estate.

6. That the issue of locus standi is a pure point of law.

The Landlord’s Submissions may be Summarized as Follows;

1. That the preliminary objection is not a pure point of law and cannot be determined without the court considering viva voce evidence.

2. Whether or when Jaber Mahfudh Omar died and whether the notices were issued by legal representatives with capacity is a matter of fact and not law.

3. That the notices were issued on behalf of the estate of the late Omar Jaber Mahfudh and not on behalf of the said Omar Mahfudh as alleged by the Tenants.

4. The Tenants have filed references against the notices now being challenged and the Tenants are therefore estopped.

5. The Tenants have filed an objection against their own references instead of withdrawing the said references.

6. That the Landlord’s death does not determine a controlled tenancy and the Landlord’s representatives retain the right to enforce the tenancy as survivors.

7. The provisions of the Law Report Act as regards locus standi do not apply to controlled tenancies.

8. There is no requirement under the Act for the notices to be issued by administrators or executors.

9. The intention to increase rent on the part of the Landlord’s representatives cannot be termed as intermeddling with the estate.

Having summarized the submissions of the parties herein as above, the issues that arise for determination in my view are the following;

1. Whether the notices issued by the firm of Sherman Nyongesa & Matubiaadvocates on 21st February 2019 have been validly issued.

2. Whether Jaber Mahfudh Omar is deceased.

3. Whether the Law of Succession Act Cap 160 of the Laws of Kenya applies in the circumstances of this case.

4. Whether the notices were issued by persons with the locus standi to issue the same.

5. Whether the filing of the references in objection to the notices preclude the Tenant’s from raising the issue of the invalidity of the notices.

The notices being challenged are all expressed to be brought by Sherman Ntongesa & Mutubia Advocates for the estate of the late Jaber Mahfudh Omar. It is therefore safe to accept as a fact needing no evidentiary proof that the said Jaber Mahfudh Omar is indeed deceased. The issue to be determined at this point is therefore whether or who would be the proper party to issue the notices relevant to the tenancies herein. Jaber Mahfudh Omar being deceased could obviously not issue the notices.

The Landlord and Tenant (Shops, Hotel and Catering Establishments Act) Cap 301 of the Laws of Kenya, is silent on who should or ought to issue the notice under section 4(2)of the said Act in the event of the death of the Landlord;

Section 4(2) is in the following terms;

“A Landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant any term or condition in or right or service enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form”.

Section 2(1) of the said Act defines a Landlord as follows;

“Landlord” in relation to a tenancy means the person for the time being entitled as between himself and the Tenant to the rents and profits of the premises payable under the terms of the tenancy.”

This is the person therefore, who has the capacity to give the notice under section 4(2) of the Act (Cap 301). The notices under challenge have been issued by the advocates for the estate of the deceased. Are the advocates persons entitled as between themselves and the Tenants to the rents and profits of the premises payable under the tenancy?

I think not. Is the estate of the deceased entitled to the rent and profits payable under the tenancy? The estate of the deceased Jaber Mahfudh Omar is neither a natural person nor a corporate entity. It cannot represent itself nor give instructions to counsel to appear for itself by itself. The estate of the deceased herein can only operate through the administrators or legal representatives of the deceased’s estate, it can only issue instructions as such.

This is even more so as the Law of Succession Act defines, “Estate” as the free property of a deceased person. The estate of the deceased Jaber Mahfudh Omar therefore means no more than the free property of the deceased Jaber Mahfudh Omar. Property on its own cannot give instruction or issue the notice contemplated under section 4(2) of Cap 301.

Section 2 of the Law of Succession Act provides as follows;2(1) “Except as otherwise expressly provided in this Act or any other written law the provisions of this Act shall constitute the Law of Kenya in respect of and shall have universal application to all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”

The estate of the deceased in this case is therefore subject to the Law of Succession Act and to the provisions thereof. The property of a deceased person under section 79 of Cap 160 of the Laws of Kenyavests in his personal representative. The section provides;

“The executor or administration to whom representation has been granted shall be the personal representative of the deceased for all purposes of the grant, and subject to any limitation imposed by the grant all the property of the deceased shall vest in him as a personal representative.”

Under section 82(a) of Cap 160) the Law of Succession Act, personal representatives shall subject only to any limitations imposed by their grant, have the following powers;

(a) To enforce by suit or otherwise all causes of action which by virtue of any law survive the deceased or arising out of his death for his personal representative.

While giving meaning and effort to the provisions of section 79 of the Law of Succession Act, the High Court in the case of the Estate of Ndiba Thande, High Court of Kenya at Milimani Succession Cause No 2255 of 2010 stated at page 2 of its judgement;

“The effect of section 79 of the Law of Succession Act is to clothe the administrator of the estate of the deceased with all the rights the deceased had over his property and similarly impose upon the administration all the duties that the deceased had over his property. It is on the basis of section 79 that the administrator can sue or be sued on behalf of the estate, can enter into contract with third parties with respect to estate property, and can enforce causes of actions for and on behalf of the estate of the deceased. It is for that reason that the administrator is the personal representative of the deceased. He can practically do anything that the deceased would have legally done were he alive.”

The notices being challenged in these matters were issued by a firm of advocates on behalf of the estate of the deceased herein. I have already stated that the said firm of advocates does not fit the definition of a Landlord under section 2(1) of Cap 301 and could therefore not issue a notice under section 4(2) of Cap 301 which is required to be issued by a Landlord as defined in the said Act. The firm of advocates has also not demonstrated that it has been granted any representation over the estate of the deceased herein. The firm of Sherman Nyongesa & Mutubia advocates is therefore not the personal representative of the deceased Jaber Mahfudh Omar and cannot therefore sue on behalf of the estate. The said firm of advocates cannot exercise the powers of a personal representative of the estate of the deceased herein under section 82(a) of the Law of Succession Act.

The notices in the circumstances were issued by persons/parties who were not the administrators of the estate of the deceased and had no authority to deal with the estate property. Their acts amount to intermeddling with the estate of the deceased. In the case of the estate of Thiba Thande (supra) at page 3, the court expressed itself as follows regarding parties intermeddling with the estates of deceased persons;

“Quite clearly, a holder of a grant of representation has authority to handle the property of a dead person, but not so a person without such a grant. A person who handles estate property without authority is an intermeddler.

There is a wealth of case law on what amounts to intermeddling. In John Kasyoki Kieti Vs Tabitha Nzivulu Kieti and another in Machakos High Court Civil Case No. 95 of 2001, it was held that doing anything affecting the estate of the deceased person amounts to intermeddling. On the facts of that case, it was said that commencing a suit on behalf of the estate before obtaining a grant of representation is intermeddling with the estate.”

I do not think that the fact that the Tenants filed references against the notices dated 21st February 2019 clothed the firm of Sherman Nyongesa and Mutubia advocates with the necessary authority to issue the notices and neither did the said references validate an otherwise invalid notice. The references cannot amount to a waiver of the requirements of the Law of Succession Act, Cap 160 of the Laws of Kenya requiring persons to take charge of the estates of the deceased.

In conclusion therefore, I do find the notices issued to the Tenants herein on 21st February 2019are invalid and shallbe of no effect. The notice of preliminary objection, by the Tenants dated 31st October 2019 has merit and is allowed with costs to the Tenants.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING READ AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 6TH DAY OF AUGUST IN THE PRESENCE OF NAFULA ADVOCATE FOR THE TENANT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL