[2021] KEBPRT 169 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 76 OF 2021 (NAKURU)

EMMANUEL NGARUIYA KIRONJI T/A

LIFE TRANSFORMATION CENTRE.................................................TENANT/APPLICANT

VERSUS

TERESIAH NJERI KIMANI...............................................LANDLORD/1ST RESPONDENT

GERALD MUGO KIMANI................................................LANDLORD/2ND RESPONDENT

RULING

1. On 22nd June 2021, the Tenant/Applicant filed a notice of motion seeking an order that the Landlord be ordered to accept rent and to stop harassing and/or evicting the Tenant from the premises located at “Kwa Buda” area about 4 kilometers from Nakuru Town, amongst other prayers. On 24th June 2021, the Tribunal issued orders in terms of prayers 1, 2 and 3 of the said application.

2. The 1st Respondent’s notice of motion dated 28th June 2021has sought orders of injunction against the Tenant/Applicant restraining the Tenant from interfering by congregating or holding any meetings in the suit premises known as Bahati/Kabatini Block 1/2805. The application has also sought orders to rescind the orders dated 24th June 2021 and that the orders issued by Justice Matheka in the ruling dated 31st May 2021 be implemented forthwith.

3. The application by the 1st Respondent/Landlord is supported by the affidavit of the 1st Respondent which may be summarized as follows;

a. That she is the administrator of the estate of the late Geoffrey Kimani Mugo. The 2nd Respondent is her son.

b. That she has never entered into any tenancy agreement with the Tenant herein.

c. That a ruling has already been delivered in succession cause No. 47 of 2015 Nakuruon 31st May 2021.

d. That the Tenant/Applicant has no claim or interest whatsoever on the suit land.

e. That unless the Tenant is evicted, the 1st Respondent stands to suffer immensely.

4. In opposing the application, the Tenant has relied on his affidavits sworn on 22nd June 2021 and 23rd August 2021. The said affidavits may be summarized as follows;

a. That the Tenant operates a business called Life Transformation Church where he pays Kshs 25,000 per month as rent.

b. That early June 2021, the 1st Respondent started harassing the Tenants congregation, threatening them with eviction.

c. That the 1st Respondent has refused to accept rent and the Tribunal has refused to accept rent and the Tribunal ought to order the 1st Respondent to accept rent and stop harassing the Tenant.

5. On 6th September 2021, the application dated 28th June 2021 proceeded by way of oral submissions. The submissions of the counsel for the 1st Respondent/the Applicant in that application may be summarized as follows;

a. That the orders issued on 24th June 2021 were issued by misrepresentation and ought to be rescinded.

b. The Tribunal has no jurisdiction to issue the orders it issued to the Tenant.

c. That it is the 2nd Respondent who brought in the Tenant through an agent.

d. That the Tenant and the 2nd Respondent were served with the ruling of the Judge on 14th June 2021 and they failed to disclose this ruling to the Tribunal.

e. That the Tenant came to court with unclean hands.

f. That the Administrator ought to be allowed to administer the estate.

g. That the Administrator/1st Respondent is wrongly sued as she was not involved in the tenancy agreement.

6. The oral submissions of counsel for the Tenant may be summarized as follows;

a. That it is the 2nd Respondent, a son to the 1st Respondent who directed the Tenant to the agent known as Planet Homes and Property Solution Ltd who was dealing with the suit premises.

b. That the Tenant entered into a lease agreement (written) with the said agent.

c. That the Tenant was not aware of the family dispute over the suit premises and was not a party to the succession dispute.

d. That the Tenant’s have been served with a court order from the High Court dated 8th June 2021. The 1st Respondent against whom the order was issued has not been disclosed.

e. The 1st Respondent has always been aware of the Tenant’s occupation of the suit premises and had never raised any issue. She lives near the suit premises.

f. That it is not easy for the Tenant to fine alternative premises and the Tenant is even willing to negotiate further terms with the Respondents.

7. The only issue for determination is whether the 1st Respondent is entitled to the orders sought in the application dated 28th June 2021. The Tenant, Emmanuel Ngaruiya Kironji is on the suit premises courtesy of a lease agreement dated 5th October 2020. The agreement was for a period of one year from 1st October 2020 to 30th September 2021. As at the time of arguments, the Tenant was still in the premises. I have not seen or been notified of any charge of that position as at the date of writing this ruling. I therefore proceed on the assumption that the Tenant is still in the premises.

8. The 1st Respondent has admitted that it is her son who introduced the Tenant to the suit premises. The Tenant has also confirmed that it is the 2nd Respondent who introduced him to the authorized agents of the Respondents who then entered into an agreement with the Tenant.

9. Clearly the tenancy between the parties was a controlled tenancy. It was in writing and for a period of less than five years, the Tenant did take possession of the premises and that fact is recognized by the 1st Respondent when she seeks to have the Tenant evicted from the premises. There is also evidence that the Tenant has been paying rent to the agent and which has not been disputed by the 1st Respondent.

10. The 1st Respondent has denied knowledge of the Tenant and the agent but the connection between the estate, the agency and the Tenant has been established. The Tenant had no notice of the proceedings in the succession cause and he has indicated that he was not a party to the same.

11. In this event, the Respondents became the principals of the agent, Planet Homes and Property Solutions Ltd. The Respondents, if indeed they were interested in terminating the tenancy, they ought then to have issued a tenancy notice to the Tenant under section 4(2) of Cap 301 which is in mandatory terms.

12. The 1st Respondent has challenged the jurisdiction of the Tribunal to hear and determine this dispute. Other than the blanket denial of jurisdiction, the 1st Respondent has not demonstrated how in the present case the jurisdiction of the Tribunal has been ousted. I do not find this challenge to be credible and I dismiss the same.

13. The 1st Respondent has placed much reliance on the ruling of the High Court in succession cause No. 47 of 2018. The grant that was sought to be relied in that case was issued on 7th July 2018. The Respondents in that case are John Ng’ang’a, Catherine Wangui Kimani and Gerald Mugo Kimani.

14. The said John Ng’ang’a is said to have occupied the premises after the demise of the husband of the 1st Respondent. The 1st Respondent, it is stated in that judgement, had never met the said Joseph Ng’ang’a but she saw the sign board of his church at the gate of the property.

15. From the material placed before me, it is clear that the said John Ng’ang’a who was the 1st Respondent in the succession cause is Not the same person as Emmanuel Ngaruiya Kironji. This is more so because the lease agreement between the Tenant herein and the agent was entered into in the year 2020 while the said John Ng’ang’a was said to have been in the premises as early as 5th September 2019when the 1st Respondent herein sought to have him made a party to the succession proceedings. I therefore do find that the orders in the succession cause did not apply or were not directed to the Tenant in this matter.

16. Even if I was wrong in this one, the High Court in the succession cause did not or absolute terms order the eviction of the Tenant. At page 18 of the ruling, the Judge states;

(b) The 1st Respondent, if he is still in possession of the premises has 30 days from the date hereof to either vacate the premises in Bahati/Kabatini/Block 1/2805 or enter into negotiations with the administrator on terms of occupation. The administrator was the discretion or otherwise what is in the best interests of the estate.

17. The Tenant referred to in the above statement by the Judge is John Nga’ng’a. It is not the Tenant in the Tribunal cause presently before me. But even that Tenant was given an opportunity to negotiate the terms of his occupation of the suit premises with the administrator of the estate, who is the 1st Respondent. If the orders issued by Justice Matheka. In the succession cause are to be implemented forthwith, then they can only be implemented against one John Ng’ang’a, he is not a party to these proceedings and I can therefore issue No orders as against him.

18. The orders of Justice Matheka cannot also be implemented against Emmanuel Ngaruiya Kironji for the reason that he was not a party in the succession dispute and he was not the Tenant referred to in the said succession cause. The tenancy of the Tenant herein was never a subject matter for discussion and determination in the succession cause.

19. Following from the above, I do find that the application by the Landlady 1st Respondent dated 28th June 2021 lacks merit and the same is dismissed with costs to the Tenant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 19th day of October, 2021 in the presence of Ms Kigothoholding brief forMr Nyagaka for the 1st Respondentand in the absence of theTenant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL