[2021] KEBPRT 325 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 911 OF 2019 (NAIROBI)

CYNTHIA WAMBUI T/A

LAIBON VILLA AND GUEST HOUSE..................................................TENANT/APPLICANT

VERSUS

TURITU SERVICE STATION LTD........................................LANDLORD/1ST RESPONDENT

HOUSING FINANCECOMPANY OF KENYA LTD...........LANDLORD/2ND RESPONDENT

RULING

The Applicant/Tenants notice of motion dated 25th September 2019 seeks the following orders;

1. Spent

2. Spent

3. Spent

4. That upon hearing this application inter partes, the honourable Tribunal be pleased to issue an order the 2nd and 3rd Respondents/Landlords issue and file a reference notice to terminate lease and/or comply with the 4years remainder of the expiry of the lease.

5. That the OCS and OCPD Lang’ata Police Station observe compliance and enforcement of the court order.

6. That the costs of the application be provided for.

The grounds upon which the application is brought and the contents of the affidavit in support thereof sworn by Cynthia Wambui may be summarized as follows;

1. That the 2nd Respondent bought the suit property in a public auction.

2. That the suit property originally belonged to the 1st Respondent.

3. That the 3rd Defendant/Respondent is an agent of the 2nd Respondent.

4. That the 2nd and 3rd Respondents have not issued a notice to vacate nor filed any reference to the Tribunal as by law required.

5. That the Tenant has invested around Kshs 28 million in the suit premises.

6. That the 2nd and 3rd Respondents have threatened to evict the Tenant and have locked the doors.

7. That the 2nd and 3rd Respondents are not auctioneers.

8. That by a letter dated 23rd September 2019, the 2nd Respondent informed the Tenant that it had purchased the suit property via a public auction.

9. That the Tenant was not informed of the auction with a notice before and after the auction as by law required.

10. That the tenancy herein is a controlled tenancy expiring on December 2021.

11. That the Tenant does not owe the 1st Respondent any rent arrears.

12. That no reference has been filed to terminate the tenancy.

The application is opposed. The 2nd Respondent has sworn a replying affidavit through one Mr Joseph Lale, a Legal Officer with the 2nd Respondent. The contents of the said replying affidavit may be summarized as follows;

1. That the deponent has no legal capacity to bring this suit as she is not the proprietor of the Applicant/Tenant and this suit ought to be struck out.

2. That the 1st Respondent obtained a loan of Kshs 250,000,000/-from the 2nd Respondent which the 1st Respondent was unable to service making it necessary for the 2nd Respondent to exercise its right of sale over LR No. 37/254/31 Nairobi West and LR. No. 209/178/29Limuru Road.

3. That the 1st Respondent challenged the 2nd Respondent’s exercise of its statutory right of sale by filing Nairobi HCCC No 342 of 2018 which was compromised by a consent recorded in court on 13th August 2019.

4. That on 30th August 2019, the 2nd Respondent emerged as the highest bidder in a public auction conducted by Garam Investments Auctioneers.

5. That Mr David Njuguna Ngoi is the proprietor of the Applicant/Tenant and not the Applicant herein.

6. That the 2nd Respondent’s access to its property cannot amount to trespass in law.

7. That the suit premises was advertised for sale in the print media and the Tenant ought to have been aware.

8. That for the tenancy herein to be controlled, the Tenant has to annex a registered lease and also show that an entry to this effect had been registered in the original title.

The Applicant’s submissions may be summarized as follows:

1. That vide a certificate of registration of change of particulars dated 20th December 2018, the Applicant is registered as trading as Laibon Villa and Guest House.

2. That the Applicant is a sub-tenant of the 1st Respondent’s Tenant vide a sublease dated 6th January 2018. The Tenant’s lease is the one dated 1st March 2016.

3. The 1st Respondent is therefore the Applicant’s head lessor. Therefore, a Tenant/Landlord relationship exists.

4. That the Applicant has a valid controlled tenancy, sub-lease, the lease between the Tenant and the 1st Respondent being one for four (4) years.

5. That the Applicant was not given a notice to terminate the sub-lease as per section 5(2) of Cap 301 Laws of Kenya.

6. That the 2nd and 3rd Respondents ought to be ordered to issue a notice to terminate the sub-lease dated 6th January 2018 or in the alternative to comply with the four years remainder of the sub-lease.

The Respondent’s submissions may also be summarized as follows;

1. That the Applicant Cynthia Wambui T/A Laibon Guest House does not exist in law.

2. That as per a search conducted on 27th November 2019, the proprietor of the business name Laibon Villa and Guest House is one David Njuguna Ngoi.

3. That the same David Njuguna Ngoi has also filed BPRT case No. 911 of 2019 against the 2nd Respondent, the present (I believe the proper citation is 977 of 2019).

4. That an entity without legal capacity cannot sue or be sued. The Applicant being a non-existent person lacks legal capacity to institute these proceedings.

5. That Cynthia Wambui has not attached any piece of evidence to prove the relationship between herself and Laibon Villa Guest House.

6. That the Applicant has not annexed any written authority to swear the affidavit on behalf of the Applicant.

7. That the Applicant has not adduced any evidence to prove that there exists a tenancy relationship between it and the 2nd Respondent.

8. The Applicant has not demonstrated that it remits any rent to the 2nd Respondent.

9. That the Tribunal therefore lacks jurisdiction to hear and determine this matter.

10. That the Tribunal has no jurisdiction to entertain an application by a Tenant for recovery of possession.

11. That this Tribunal lacks jurisdiction to issue injunctive orders.

12. That an official search conducted on 2nd June 2021disclosed that David Njuguna Ngoi is the proprietor of Laibon Villa and Guest House and not Cynthia Wambui Njuguna.

13. That the certificate produced by the Applicant in this matter ought to be subjected to criminal investigations on allegations of forgery and fraud.

From the foregoing summaries of the parties’ respective cases, the following issues arise for determination;

1. Whether the Applicant Cynthia Wangui T/A Laibon Villa and Guest House has capacity to bring these proceedings against the Respondents.

2. Whether there exists a tenancy relationship between the Applicant and the 2nd Respondent and if so, whether the said tenancy is a controlled tenancy.

3. Whether this Tribunal has jurisdiction to hear and determine this dispute.

4. Whether the Applicant is entitled to the orders sought in her application.

On Issue No 1

The Applicant, in support of her contention that she exists in law relies on a certificate of registration of change of particulars dated 20th December 2018. The certificate is listed as authority number 1 in the Applicant’s list of authorities. This position is contested by the 2nd Respondent who states that by a search conducted by itself on 2nd February 2021, the official records disclosed that one Devid Njuguna Ngoi is the proprietor of Laibon Villa and Guest House.

At this stage of these proceedings, I am faced with two documents, all of which purport to be official but stating different positions as far as proprietorship of the business name Laibon Villa and Guest House is concerned. I am not able to decide which of the two is the genuine one, only the Registrar of Companies can shed light on the genuineness of either of the documents.

I have not seen any affidavit sworn by the Registrar of Companies confirming the genuineness of any of the documents and denying the other. This is an issue therefore that can only be decided on a full hearing of the reference where oral evidence may be required and parties examined on the validity of the documents.

On Issue No 2 and 3

The Applicant’s affidavit in support of her application indicates that the Applicant is a controlled Tenant with her lease expiring in the year 2024, 31st December and that she has no rent arrears owing to the 1st Respondent. It is therefore safe to conclude that the Tenant’s Landlord was the 1st Respondent. The affidavit has not exhibited any lease agreement as between the Applicant and the 1st Respondent. The 1st Respondent has on its part kept clear of this dispute. It has not filed any pleadings in this matter.

I have however seen a sub-lease agreement dated 6th January 2018 between Lazinos Hotel and the Applicant herein. The said sublease has been introduced into these proceedings by way of a list of documents.

In my view, a document whish appears in a list of documents and which has not been introduced by way of an affidavit can only be dealt with at a full hearing. This is so because the opposing party cannot challenge the document by a response in its submissions or another list.

The sublease referred to above ought therefore to have been made as part of the application by annexing the same to an affidavit if the Respondent herein was expected to respond to the same at this interlocutory stage.

Be that as it may, the sublease expresses itself to be between the Applicant, Lazinos Hotel and Restaurant Ltd and the 1st Respondent. The sublease on record is executed by the Applicant and Lazinos Hotel and Restaurant Ltd. I have not seen any execution on the part of the 1st Respondent.

The 2nd Respondent has indicated that it purchased the suit property on 30th August 2019 in a public auction. This fact is not in dispute and indeed the Applicant does not contest it. The question that arises for determination therefore is, does there exist any relationship between the Applicant and the 2nd Respondent.

The 1st Respondent having ceased to have any rights over the property cannot be said to be the Applicants/Landlords anymore. Is the 2nd Respondent the new Landlord of the Applicant upon its purchase of the suit premises in the public auction?

I think it is more than clear that the Applicant is in the premises. She is in occupation of the same, at paragraph 16 of the 2nd Respondent’s replying affidavit, the said Respondent states;

“That contrary to paragraph 8 of the affidavit, the 2nd Respondent has since complied with this Tribunal’s order of 30th September 2019. The Applicant/Tenant has had access to the suit premises since the said date.”

The order referred to above required the Respondents to refrain from interfering with the Applicant’s quiet enjoyment of the suit premises and to return to the said premises the Tenant’s goods seized on 23rd September 2019.

It would therefore be safe to state here that the Applicant was in occupation of the suit premises when the 2nd Respondent purchased the same at the public auction.

The 2nd Respondent therefore became the person for the time being entitled as between himself and the Tenant to the rents of the premises payable under the tenancy. The Applicant, in this scenario also became the person for the time being entitled to the tenancy.

Under Cap 301, Landlord and Tenant have been defined 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.

“Tenant” in relation to a tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding and includes a sub-tenant.

The relationship between the Applicant and the 2nd Respondent is not governed by any written agreement. It is therefore a controlled tenancy under the provisions of section 2(1)(a) of Cap 301.

That being the case, if the 2nd Respondent desired to have the Applicant move out of the premises, then it was bound to issue the Applicant with the notice under section 4(2) of Cap 301 which 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.”

On issue No 2 and 3, I do therefore find that there exists a controlled tenancy between the Applicant and the 2nd Respondent and further that this Tribunal has jurisdiction to hear and determine this matter.

On Issue No 4

I have already found that the tenancy herein is a controlled tenancy. The Tenant/Applicant was a sub-tenant of the 1st Respondent. The only available method for terminating the Applicant’s tenancy is under the Act, Cap 301 of the Laws of Kenya.

The 2nd Respondent, who as observed earlier became the Landlord of the Applicant upon the purchase of the suit premises, is obligated to issue the notice required under section 4(2) of the Act if it is desirous of terminating the Applicant’s lease.

I therefore allow the application dated 25th September 2021 in the terms that the 2nd Respondent shall terminate the Applicant’s tenancy in the manner provided for under Cap 301 of the Laws of Kenya if it so DESIRES.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling delivered in virtually by Hon Cyprian Mugambi Nguthari this 18th day of August 2021 in the presence of Ms Muleifor the2nd Respondentand in the absence of Mwenda Njugi & Co Advocates for the Applicants and Ogessa & Co for the 1st Respondents.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL