[2022] KEBPRT 106 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E254 OF 2021 (NAIROBI)

DAGORETTI COMPUTER CENTRE LIMITED.......TENANT/APPLICANT

VERSUS

KABIZZ ENTERPRISE LIMITED...............................1ST RESPONDENT

SHELTER AND CREDIT LIMITED........................... 2ND RESPONDENT

RULING

1. By a motion dated 28th June 2021, the Applicant moved this Tribunal seeking for restraining orders against the Respondents from removing, evicting, ejecting, expelling and/or in any way interfering with its quiet occupation of the suit premises pending the hearing and determination of this reference.

2. It further seeks for an order quashing the letter purporting to terminate the Tenant’s lease.

3. The application is supported by the affidavit of Patrick Wambua and the grounds on the face of the application. It is deposed in the affidavit that the Applicant’s landlord is the 1st Respondent since the year 2010 with the last lease renewal having been done on 10th January 2020.

4. All rent payments are made to the 1st Respondent but on 24th June 2021, the 2nd Respondent through Maitai Nyawira & Associates Advocates issued an eviction notice marked ‘PW-3’ stating that it was the legally registered owner of the property and the continued occupation by the Applicant was illegal and an act of trespass.

5. According to the Applicant, the bonafide landlord is the 1st Respondent for the last 12 years. The notice issued is said to be illegal and offensive to mandatory requirements of Cap. 301.

6. As a result, the Applicant came before this Tribunal to prevent its eviction and protect its business from the unfair, unjust and illegal acts of the 2nd Respondent.

7. In response, the 2nd Respondent filed a preliminary objection dated 19th August 2021 stating that it was not a landlord nor an agent and that there was no landlord/tenant relationship between it and the Applicant and as such it was not a proper party to this suit.

8. The 2nd Respondent also filed a replying affidavit sworn on 19th August 2021 by Simon Ngugi Muigai who is its director.

9. The 2nd Respondent deposes that it was the registered owner of the land parcel known as Dagoretti/Karandini/79 wherein the Applicant’s business is situate as per annexture SNM.

10. The said premises are said to have been transferred to Makini Security Services Limited on 11th September 2019 as per annexture SNM. The said company is the current owner thereof. However, one Kinuthia Wanyee is said to be renting out the premises and collecting rent since 2015.

11. According to the 2nd Respondent, the said Kinuthia Wanyee has no legal rights over the premises and there exists a legal suit vide MCELC/E279/2021 on the issue as per a copy of the plaint attached to the affidavit.

12. As no landlord/tenant relationship exists between the 2nd Respondent and the Applicant or between Makini Security Services Limited and the latter, the nature of dispute is one that can only be handled by the Environment and Land Court according to the 2nd Respondent.

13. The 2nd Respondent avers that the deponent, Simon Ngugi Muigai is also a director of Makini Security Services Limited which owns the suit property. The initial notice in the name of the 2nd Respondent was erroneous and it is deposed that a subsequent notice was issued in the name of Makini Security Services Limited.

14. A perusal of the record does not bear the second notice. A supplementary affidavit was filed by the Applicant. The same was sworn by Patrick Wambua on 4th October 2021 wherein it is deposed that the issue of ownership of or validity of title of the suit property is subject matter of ELC Suit No. 199 of 2021 wherein the 2nd Respondent is named as the 2nd defendant in terms of the plaint marked PW-1’ and also in CM’s court vide MCELC/E279/2021 as per annexture ‘PW-2’.

15. The Applicant being not a party in the said suits contends that it is entitled to quiet possession and should not be disturbed or prejudiced by the dispute as it would stand to suffer irreparable damage and loss of business which was its only source of livelihood.

16. The Applicant therefore prays that the suit be stood over generally or be stayed to await determination of the ownership issue or in the alternative the orders issued herein be extended to protect it from eviction until the said suits are determined and the right landlord identified.

17. I am required to determine the following issues:-

(a) Whether the Applicant is entitled to the reliefs sought.

(b) Whether there exists a landlord/tenant relationship between the 2nd Respondent and the Applicant to warrant the orders sought against it.

(c) Who is liable to pay costs of the suit?

18. The matter was ordered to proceed by way of written submissions and both parties complied. I shall address the submissions together with the framed issues.

19. It is not in dispute that the Applicant is a tenant of the 1st Respondent who does not appear to have been served with the pleadings herein since there is no affidavit of service on record. I note that even if it was served, there is no allegation made against it in this matter and I presume that its joinder was merely as a necessary party to the proceedings. In absence of any relief sought against it, I do not think any cause of action is disclosed and I proceed to strike out its name as a party herein.

20. I note that there is no landlord/tenant relationship between the 2nd Respondent and the Applicant. However the 2nd Respondent issued eviction notices upon the Applicant giving 14 days to vacate from the suit premises on the basis that it was the registered owner thereof.

21. The 2nd Respondent admits that the issue of ownership of the suit premises is a live matter in other court proceedings which are pending elsewhere. Although it questions jurisdiction of this Tribunal from hearing the matter, there is no doubt that the premises is a shop within the meaning and interpretation of Cap. 301, Laws of Kenya.

22. The preamble to the Act states:-

“An act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto”

23. The question that arises is whether this Tribunal can allow a stranger who tries to evict a tenant from a protected tenancy on claims of ownership on the basis of lack of jurisdiction. I refuse to buy such an argument especially when the tenant is not a party to the ranging ownership dispute over the suit property in the Chief Magistrate’s Court and the Environment and Land Court. Equity will not suffer a wrong to be without a remedy. In this regard, I rely on the decision in the case of Iyale Academy -vs- Jim Mugambo Mbugua & 2 others (2013) eKLR in which the High Court granted an injunction to prevent certain actions by the landlord against a school premises whose lease had expired.

24. Although there is no landlord/tenant relationship between the 2nd Respondent and the Applicant, this Tribunal has jurisdiction to prevent the former from interfering with the tenancy which is controlled in line with the decision in Dolat Karim Waljee – vs- S. Rose (1976) eKLR where the Court of Appeal for Eastern Africa maintained that the procedure laid down under Cap. 301, Laws of Kenya had to be followed before termination of tenancy or obtaining vacant possession.

25. I have read the case of Republic - vs- Chairperson Business Premises Rent Tribunal at Nairobi ex-parte Suraj Housing & Properties Limited & 2 others (2016) eKLR and the facts therein are clearly distinguishable from those in the present case. Paragraph 29 of the decision speaks to the said fact. A dispute arising from occupation of controlled tenancy ought to be dealt with under the Act whether or not the parties thereto recognize each other as landlord and tenant.

26. Under Section 2 of Cap. 301, Laws of Kenya, the term landlord is 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”

27. The 2nd Respondent claims that the suit premises were illegally given to the tenant by one Kinuthia Wanyee who had no legal rights over the premises. This means that the 2nd Respondent claims entitlement to the rental income and as such is posing as the proper landlord which gives the Tribunal jurisdiction to protect the tenant from illegal eviction.

28. I have seen the letters issued to the tenant and the same do not comply with Section 4(2) of Cap. 301. The notices are illegal.

29. In the premises, the Applicant is entitled to the reliefs sought in the application.

30. Since the reference dated 5th July 2021 raises the same issues as the application under consideration, this ruling shall apply to it under section 9(1) of Cap. 301, Laws of Kenya.

31. In the premises, I am convinced that the Applicant has satisfied the principles for the grant of an injunction in line with the decision in the case of Thomson Smith Aikman & Others -vs- Muchoki & others (1982) eKLR where the Court of Appeal at page 4/6 held as follows:-

“……….the court ought never to condone and allow to continue a flouting of the law. Those who flout the law by infringing the rightful title of others and brazenly admit it, ought to be restrained by injunction. If I am adding a new dimension for the grant of an interlocutory injunction, be it so. Equity will not assist law-breakers”

32. Similarly, the 2nd Respondent cannot continue to interfere with the Applicant’s tenancy which is controlled on the flimsy reason that there is no landlord/tenancy relationship between them.

33. In the premises, the final orders that commend to me are:-

(i) The 2nd Respondent, its servants, employees, agents or anyone acting on its behalf are hereby restrained from removing, evicting, ejecting, expelling and/or in any way interfering with the tenant’s quiet occupation of the suit premises in contravention of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301. Laws of Kenya.

(ii) The eviction notices issued by the 1st Respondent against the tenant are declared invalid and of no effect.

(iii) The OCS, Dagoretti Police Station shall ensure compliance with orders issued herein.

(iv) Costs of Kshs.30,000/- are awarded to the tenant against the 2nd Respondent.

It is so ordered.

RULING, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF JANUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Maitai for 2nd Respondent

Oginga for the Tenant/Applicant