[2022] KEBPRT 95 (KLR)
The tribunal found that the respondents had not provided sufficient proof of their status as administrators of the estate of the deceased landlord, as the grant of letters of administration was contested and suspended by a court order. The applicants demonstrated, through documentary evidence, that the respondents'...
Source-derived case information.
- Citation
- [2022] KEBPRT 95 (KLR)
- Parties
- Applicant: Close Burn Estate Tenants; Applicant: Aurther Ndegwa Waiganjo; Respondent: Nancy Wairimu; Respondent: Yvonne Waiganjo; Respondent: Prodigy Auctioneers
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E427 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application upheld
- Legal Topics
- Landlord Tenant Dispute, Succession of Landlord, Rent Payment Arrangements, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Close Burn Estate Tenants
Applicant
Aurther Ndegwa Waiganjo
Applicant
Nancy Wairimu
Respondent
Yvonne Waiganjo
Respondent
Prodigy Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Who is the rightful landlord to whom the tenant should pay rent following the demise of the previous landlord?
- 2 Whether the respondents should be restrained from interfering with the tenant's possession and property pending determination of the succession cause.
Ratio Decidendi
The tribunal found that the respondents had not provided sufficient proof of their status as administrators of the estate of the deceased landlord, as the grant of letters of administration was contested and suspended by a court order. The applicants demonstrated, through documentary evidence, that the respondents' position as administrators was in dispute and that due process had not been followed in the acquisition of the grant. The tribunal also noted that the proclamation notice was issued against a different person and not the applicants. In the interests of justice and to prevent potential interference with the applicants' property, the tribunal granted the orders sought,...
Court Disposition
application upheld
Orders
- The respondents are barred from interfering with the suit property in any way until the court pronounces itself in Succession Cause No. E957 OF 2020 and a valid grant of letters of administration is issued.
- Counsels for the parties shall create a joint interest earning account within 30 days for rent deposit pending determination of the succession cause, effective 1st March 2022. Failing which, rent shall be deposited in the Tribunal account.
Full Case Text
Judgment text and source record
50 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO. E427 OF 2021
CLOSE BURN ESTATE TENANTS.............................................TENANT/1ST APPLICANT
AURTHER NDEGWA WAIGANJO.............................................................2ND APPLICANT
VERSUS
NANCY WAIRIMU.........................................................LANDLORD/ 1ST RESPONDENT
YVONNE WAIGANJO...........................................................................2ND RESPONDENT
PRODIGY AUCTIONEERS................................................................3RD RESPONDENT
RULING
A. Parties and Representatives
1. The 1st Applicant Close Burn Estate is the Tenant and rented space on LR No. 209/22 situated within Runda Nairobi County for the business (hereinafter known as the ‘Tenant’)
2. The 2nd Applicant Arthur Ndegwa Waiganjo was appointed as the personal real estate Manager for the late David Waiganjo.
3. The firm of Okatch & Partners Advocates represent the Tenant/Applicant in this matter. okatchpartners@gmail.com.
4. The 1st and 2nd respondents are the alleged administrators of the suit property LR No. 209/22 Runda Nairobi County rented out to the tenants (hereinafter the ‘Landlord’).
5. The firm of Mogire & Company Advocates represent the Landlord/respondent in this matter. mogireadvs@gmail.com.
B. The Dispute Background
6. On 6th August 2021 the Landlord served the Tenant with a proclamation notice that was intended to materialize on 18th August 2021.
7. On 11th August 2021 the Tenant moved this Tribunal by way of notice of motion under certificate of urgency filed under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant was seeking amongst other orders that pending the hearing and determination of the reference that the Tribunal order the respondents be restrained by themselves, their employees, and/or agents from attaching, advertising, auctioning or selling the Applicant’s properties and from interfering with their quiet possession. Further the Tenant sought orders that the status of the mode of payment be maintained.
8. On 19th August 2021 the Tribunal ordered that the respondents be restrained by themselves, their employees, and/or agents from attaching, advertising, auctioning or selling the Applicant’s properties and from interfering with their quiet possession as well as that the status of the mode of payment be maintained.
C. The Tenant’s Claim
9. The Tenant filed a reference and a notice of motion application dated 11th August 2021 in opposition of a proclamation notice issued by the Landlord/Respondent.
D. The Landlord’s Claim
10. The Landlord filed a replying affidavit dated 7th September 2021 in response to the Tenant’s reference and notice of motion application.
11. The Applicant has filed written submissions and the matter was fixed for ruling.
E. List of Issues for Determination
12. The main issue before this Tribunal is who is the right Landlord the Tenant ought to pay rent to upon the demise of their previous Landlord?
F. Analysis and Findings
Whether the applicant is entitled to the orders sought?
13. The 1st Applicants are seeking the protection of this Honourable Tribunal to prevent the Respondents from proclaiming and auctioning their property as per the proclamation notice dated 6th August 2021.
14. The Applicants have averred that the suit property belonged to the estate of Mbiu Koinange and was under the administration of one Mr. David Waiganjo Koinange who is currently demised. Prior to his demise Mr. David appointed the 2nd Applicant Mr. Arthur Ndegwa Waiganjo as his personal real estate Manager and tasked him with the role of collecting rent from the tenants in the premises, the Tenant has attached a letter dated 9th August 2019. As proof of he said appointment.
15. The 1st Respondent has averred that they are the legal administrators of the estate of David Waiganjo Koinange together with the 2nd Respondent. They have attached the said grant of letters of administration dated 3rd January 2021.
16. From the Applicant’s submissions the said grant of letters of administration has been contested and the Applicant has annexed a court order dated 18th November 2021which provides that the Letters of Administration that had been issued to the petitioners are suspendedand the matter will be proceeding in court on 7th March 2022. In addition to the above the Applicants have also annexed a letter from the chief dated 23rd December 2020 showing that the Respondents did not follow due process in the acquisition of the grant of letters of administration since they did not involve all the beneficiaries.
17. The said documents though crucial evidence is annexed to the submissions and not to an affidavit thus the authenticity to be relied upon is watered down.
18. Based on the foregoing this Tribunal is persuaded to agree with the Applicants. The Respondents have not provided sufficient proof to reaffirm their positions as the administrators of the Estate of Mr. David as well as any documents showing that the said properties are part of his estate. The Applicants have shown using the various documents mentioned above that the position of the Respondents is contested and they should not be allowed to interfere with the property of the deceased Mr. David.
19. It is also the observation of this Tribunal that as stated by the Respondents, the proclamation notice dated 6th August 2021 has been issued against a different person Mr. George Munge who is not the said Applicant in this case. It is the contention of the Tribunal that the Respondents did not intend to proclaim and auction the properties of the Applicants in this case, instead the notice was intended for the Tenants who are in default. As such the Tribunal believes that the property of the Applicant does not stand to be affected by the actualization of the notice.
20. It would however be against the interest of justice for the Tribunal to fail and shield the Applicants from the actions of the purported administrators and it is in light of the foregoing that the Tribunal is moved to grant the orders sought by the Applicants.
G. Orders
a) The Tenant’s reference and application dated 11th August 2021 are hereby upheld in the following terms;
a.The Respondents are barred from interfering with the suit property in any way until such a time as the court shall pronounce itself in Succession Cause No. E957 OF 2020 and the grant of letters of administration are issued with regards to the Estate of David Waiganjo.
b.Counsels for the parties shall create a joint interest earning account within the next 30days where the rent for the suit premises shall be deposited by the Tenants pending determination of the Succession Cause No. E957 of 2020. effective 1st March 2022. Failure to which rent shall be deposited in the Tribunal account.
c.Mention for compliance on 3rd March 2022.
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 1stday ofFebruary, 2022 in the presence of Olweholding brief forOkatchfor the Applicant and in the absence of the Respondent.
HON A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL