[2022] KEBPRT 33 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. E573 OF 2021

CHINA WUYI COMPANY LTD......................TENANT/APPLICANT

VERSUS

ALICE WAMAITHA MWANGI......LANDLORD/1ST RESPONDENT

FAITH NYAMBURA GAKUHA.....LANDLORD/2ND RESPONDENT

RULING

A. Parties and Representatives

1. The Applicant China Wuyi Company is the Tenant and rented space for the business in the suit property Longonot/Kijabe Block 4/528 in Kiambu County (hereinafter known as the ‘Tenant’)

2. The firm of Muthoga Omari Advocates represent the Applicant/Tenant in this matter. info@advocates.co.ke

3. The 2nd Respondent Faith Nyambura Gakuha is the Landlord and rented out space to the Tenant for the business in the suit property (hereinafter known as the ‘landlord’)

4. The firm of Gichuki King’ara Co. Advocates represent the Respondent/Landlord in this matter.

B. The Dispute Background

5. The 1st Respondent and the Tenant entered into a tenancy agreement dated 4th May 2017 for a period of six years at a total cost of Kshs. 2,000,000/- for the whole period of six years.

6. That at the time of entering into the said agreement the 1st Respondent represented themselves as being the administrators of the suit property but did not disclose that they were not beneficiaries of the same property.

7. On 15th March 2018, pursuant to court orders, armed police officers appeared on the premises requiring that the Tenant vacate, after there were complaints made to the court by the actual beneficiaries of the land.

8. The tenant/applicant has since moved this tribunal by way of reference and a notice of motion application dated 8th October 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The tenant was seeking that pending the hearing and determination of the suit the Landlord be restrained from attaching or removing the property of the applicant.

C. Jurisdiction

9. The Jurisdiction of this Tribunal is in dispute.

D. The Tenant’s Claim

10. The Tenant filed a reference and notice of motion application dated 8th October 2021and acquired injunctory orders

11. The 2nd respondent has filed a replying affidavit dated 9th February 2022.

12. The 1st Respondent has filed a preliminary objection dated 8th November 2021.

13. Parties have filed submissions and the matter was fixed for ruling on 17th March 2022.

E. List of Issues for Determination

14. It is the contention of this Tribunal that the issues raised for determination are as follows;

Is the 1st applicant Lease with the Tenant valid?

F. Analysis and Findings

15. Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenyaprovides that;

“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit”

16. The above provision allows the Business Premises and Rent Tribunal to in addition to the powers conferred upon it by the Act investigate on any other matters that may be raised in relation to a controlled tenancy.

17. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya Act at section 2 defines a controlled tenancyas;

a tenancy of a shop, hotel or catering establishment—

(a) which has not been reduced into writing; or

(b) which has been reduced into writing and which—

(i) is for a period not exceeding five years; or

(ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof;

18. I have perused the court file and have observed that there exists two tenancy agreements entered into by the parties in these proceedings. The first one is the agreement between the Tenant and the 1st Respondent dated 4th May 2017 which was for a period of six years. The second agreement is between the Tenant and the 2nd Respondent dated 1st June 2020 which was for a period of five years.

19. The main question of determination before this Tribunal is which tenancy agreement is considered legally valid and as such due to the difference in the periods of the agreements subsequently determine whether the Tribunal has jurisdiction over the matter.

20. The Tenant has presented before the Tribunal the fact that at the time of entering into the lease agreement with the 1st Respondent they believed that they were the administrators of the estate of madam Cecilia Wanjiku Kibiche which was evidenced by the certificate of confirmation of grant dated 22nd February 2017.

21. The said grant was objected and court orders were issued in High Court Succession Cause No. 53 of 2016 on 16th March 2018 requiring that the 1st Respondents be prevented from interfering with the property of the deceased and that the property be distributed among the beneficiaries only, to which the 1st Respondent was not a beneficiary.

22. It is pursuant to these orders that the beneficiaries of the land required the Tenant to vacate since they were strangers to them and were not aware of the tenancy relationship between the tenant and the 1st Respondent.

23. In a bid to continue operations, the Tenant entered into the subsequent agreement with the 2nd respondent who were now listed as beneficiaries of the estate.

24. The Tenant argues that the court orders by the court preventing interference of the estate by the 1st Respondent then rendered the agreement between them void and as such granted them the capacity to enter into the new agreement.

25. The 2nd Respondent has also stated that the attempts by the 1st respondent to levy distress for rent amount to contempt of court as there are orders in place ridding them of the authority to act on behalf of the estate.

26. The Tribunal acknowledges the fact that the 1st Respondent has also filed a suit Civil Appeal No. E235 of 2020 seeking to stay the orders granted in Succession Cause No. 53 of 2016. However, the proceedings seek to set aside the orders with regards to distribution of the estate they however do not set aside the orders barring them from interfering with the estate. Further, the matter is still in court and the court is yet to pronounce itself.

27. The Tribunal is persuaded to agree with the Tenant and the 2nd respondent that the court orders rendered the agreement between the tenant and the 1st Respondent null. In light of this the Tribunal upholds the agreement entered into with the 2nd Respondent pending the determination of the Civil Appeal E235 of 2020. Seeing as the agreement is for a term of five years then the Tribunal is rightfully clothed with jurisdiction to hear and determine the matter. However, the Tribunal is slow to list this matter for hearing in the pendency of Civil Appeal No. E 253 of 2020.

G. Orders

a. The upshot is that the preliminary objection filed by the 1st Respondent is hereby dismissed in the following terms;

a. The Tribunal upholds the validity of the tenancy agreement between the Tenant and the 2nd respondent herein dates 1st June 2020.

a. The 1st Respondent is restrained from interfering with the occupation of the premises by the tenant.

c. That pending the determination of Civil Appeal E235 of 2020 the Tenant shall keep paying rent to the 2nd Respondent as per the agreement as and when it falls due.

d. Each party shall bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 18thday ofMarch, 2022 in the presence of Mureithifor the Tenantand Wambua for the 1st RespondentandMiriefor the2nd Respondent.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL