[2022] KEBPRT 247 (KLR)

Eun-Tex Garments Traders & another v Mwangi (Sued as The Legal Representative of The Estate of Laban Kingori Macharia) & 4 others (Tribunal Case E599, E152 & E807 of 2021 (Consolidated)) [2022] KEBPRT 247 (KLR) (Civ) (15 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 247 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E599, E152 & E807 of 2021 (Consolidated)

Gakuhi Chege, Vice Chair

July 15, 2022

Between

Eun-Tex Garments Traders

1st Applicant

Marina Fashions

2nd Applicant

and

Zaweria Wangari Mwangi (Sued as The Legal Representative of The Estate of Laban Kingori Macharia)

1st Respondent

Francis Mwangi Kingori (Sued as The Legal Representative of The Estate of Laban Kingori Macharia)

2nd Respondent

Anthony Maina Kingori (Sued as The Legal Representative of The Estate of Laban Kingori Macharia)

3rd Respondent

Solomon Irungu Mwangi(Sued as The Legal Representative of The Estate of John Mwangi Kingori)

4th Respondent

Nyokabi Mwangi (Sued as The Legal Representative of The Estate of Mwangi Kingori)

5th Respondent

Ruling

1. The dispute herein revolves around the issue on who is entitled to payment of rent in respect of the business premises erected on LR NO 209/1413/28, Accra Road, Nairobi as between the 1st, 2nd and 3rd Respondents on the one hand and the 4th & 5th Respondents on the other hand from the Applicants in the consolidated references.

2. The genesis of the dispute is the 1st, 2nd and 3rd Respondents Commissioned Twinstar Auctioneers to levy distress for rent as a result of which the said auctioneers proceeded to the Applicant’s businesses and issued proclamations of attachment on October 8, 2021.

3. It is the Applicants contention that sometimes in the year 2004, they entered into tenancy agreement with the late John Mwangi Kingori in respect of the suit premises at a monthly rent of Kshs 60,000/- for each shop. They thereafter took possession of the premises and have been trading therein since then for a period of 17 years. They were paying rent to the said John Mwangi Kingori (deceased) until his demise on January 2, 2021.

4. Upon the demise of the said landlord, the Applicants started paying rent to the 4th and 5th Respondents who are the administrators of the late John Mwangi Kingori (Deceased). As at the date of issuance of the said proclamations, they were not in arrears of rent.

5. It is the Applicants case that they are not interested in the ownership of the suit premises but have brought the references for determination of the issue as to whom rent is payable. Although the applicants were aware of Nairobi High Court succession Cause NO 16 of 1988 touching on the suit premises, they were not parties to the said case.

6. It is the applicants’ case that they should not suffer at the hands of the Respondents over something which they have no control about having been faithfully and diligently paying rent whenever it falls due. As such they depose that they are entitled to carry on with their businesses in a peaceful environment without any threats or interference from the Respondents or their servants or assigns.

7. The applicants depose that they stand to suffer irreparable loss and damage as they and their employees rely on their businesses as a source of livelihood.

8. All efforts by the applicants to resolve the matter by writing letters to the 1st to 3rd Respondents and Twinster Auctioneers fell on deaf ears.

9. It is against the said background that the applicants and some of the Respondents moved this Tribunal vide their references and applications for restraining orders in the three matters dated October 19, 2021 and February 14, 2022 respectively.

10. The 1st Respondent swore a replying affidavit which is undated on behalf of herself, 2nd and 3rd Respondents where it is admitted that the dispute before this Tribunal is who between them and the 4th and 5th Respondents is entitled to receive rent from the tenants/applicants.

11. The 1st, 2nd and 3rd Respondents are executors of the will of the late Laban Kingori Macharia pursuant to a grant of probate issued in Nairobi HC Succession cause NO 16 of 1988 on July 13, 2021 marked annexure ‘ZWM1’.

12. Before July 13, 2021, the executor of the will of the late Laban Kingori Macharia was John Mwangi Kingori who died on January 22, 2021. The grant issued to the said John Mwangi Kingori was revoked on July 13, 2021 by the High court on the grounds that the same had become inoperative following death of the executor. The court appointed Zaweria Wangari Mwangi, Francis Mwangi Kingori and Anthony Maina Kingori as administrators of the deceased’s estate. The said ruling is annexed as ‘ZWM2’.

13. Pursuant to the said ruling, it is deposed that the tenants were notified by the 1st to 3rd Respondents’ advocates to pay rent, to them as executors of the deceased’s will. The letters are marked as annexures ‘ZWM3’. According to the 1st, 2nd and 3rd Respondents, the plot NO 209/1413/28 popularly known as Accra Hotel, along Accra Road belongs to the late Laban Kingori Macharia and is the subject matter of the aforesaid succession cause NO 106 of 1988 as per annexure ‘ZWM4’.

14. The said order is to the following effect:-“1. That because the charge was done subsequent and contrary to court orders, this court in exercise of its inherent jurisdiction vacates the charge made to Housing Finance Company of Kenya (HFCK) on Land parcel NO LR 209/1413/28. The HFCK shall be at liberty to move against any other of the executor’s personal properties.2. That the executor do give vacant possession of the property that is LR209/1413/28 to facilitate the sale thereof at the current market value.3. That upon the sale of the property, and because the valuation done in 2014 may have been overtaken by time, a valuation shall be done to determine the value of the land as separate from the developments thereon and the valuation shall be paid for from the proceeds of the sale. The valuer shall be agreed upon by the three counsels on record.4. That the current market value of land only shall be deposited in the estate for distribution to the three houses of the estate.5. That the executors shall then move with due dispatch to distribute the estate of the deceased to the beneficiaries in accordance wit the orders of Kimaru J dated October 29, 2014”.

15. According to the 1st to 3rd Respondents, the 4th Respondent had sought to be appointed as an executor of the deceased’s will but his application was rejected by the High Court. He is a grandson of the late Laban Kingori Macharia.

16. The 5th Respondent is the mother to 4th Respondent and wife of late John Mwangi Kingori and it is the co-Respondents’ case that the two have no business in the estate of late Laban Kingori Macharia.

17. The applicants/tenants are accused of colluding with the 4th and 5th Respondents to frustrate the executors of the deceased will from executing their duties pursuant to orders of the High Court. It is deposed without attaching any leases or evidence that the executors are now in charge of management of the plot NO 209/1413/28 and have leased the premises to new tenants.

18. It is the 1st to 3rd Respondents case that upon death of the registered owner of the said property, the estate devolved to the executors of his will and any title issued to the late John Mwangi Kingori in respect thereof is null and void.

19. The 5th Respondent also swore a replying affidavit on her own behalf and on behalf of the 4th Respondent who is her son. She deposes that she is the widow of late John Mwangi Kingori who died on January 22, 2021 whereupon she applied for and was issued with a grant of letters of administration vide Nairobi succession cause NO E593 of 2021 on August 17, 2021 marked annexure ‘SN1’.

20. It is deposed that the late John Mwangi Kingori owned the building on LR NO 209/1413/28 otherwise known as Accra Hotel which has seven (7) floors. The said building was constructed in the 1980’s during the lifetime of the late Laban Kingori Macharia who was his father. The ground/land upon which the building was constructed was owned by the latter but he gave his son permission to undertake the development.

21. The late John Mwangi Kingori rented the shops in the premises to various tenants including the applicants herein since 2004. He also received rent from the tenants without any challenges. He was also the executor of the will of the late Laban Kingori Macharia.

22. The 1st, 2nd and 3rd Respondents are siblings of the late John Mwangi Kingori. Upon being appointed administrators of the estate of Laban Kingori Macharia, the said co-Respondents started demanding rent from the tenants occupying the suit premises. It is the 5th Respondent’s case that the High Court had ordered all the assets of late Laban Kingori Macharia to be sold and proceeds thereof distributed to the three houses equally as he had three (3) wives in accordance with his will.

23. In the said case, the court is said to have considered the value of LR NO 209/1413/28 on the basis that the ground belonged to the late Laban Kingori Macharia while the building belonged to the late John Mwangi Kingori. The value of the ground/land was assessed at Kshs 75 million while the building was assessed at Kshs 222,740,440/-. This was confirmed in a ruling dated April 22, 2016 as per annexure ‘SN2’.

24. It is the 5th Respondent’s position that the 1st to 3rd Respondents were not mandated to invade and collect rent from the tenants. The tenants pay rent to the 5th Respondent following death of her husband who was the landlord. She therefore supports the tenants application to restrain the 1st to 3rd Respondents from levying distress or demanding rent from them.

25. The 2nd Respondent also filed a replying affidavit sworn on November 26, 2021 in response to the reference wherein he deposes that the suit premises belong to the estate of the late Laban Kingori Macharia and that the tenants used to pay rent to the late John Mwangi Kingori as executor of the deceased’s will. As such all rent ought to be paid into the estate account NO 20449XXXXX held at Absa Bank, River Road Branch.

26. The 1st Respondent also swore a further affidavit on November 16, 2021 wherein she deposes that the suit plot was owned by her late father one Laban Kingori Macharia contrary to paragraph 6 of the 5th Respondents’ affidavit. She annexes an invoice marked ‘ZWM5’ from Nairobi County Government to prove the said fact. She concedes that John Mwangi Kingori (deceased) is one of the beneficiaries of the estate of Laban Kingori Macharia but that all dealings with the estate by the former were done in his capacity as executor of the latter’s estate.

27. By an application dated December 22, 2021, the 1st Respondent herein filed Nairobi BPRT NO E807 of 2021 seeking for an order against five (5) tenants in the suit premises herein to pay all their monthly rent to the landlord’s account NO 45317700663XXXXX, Absa Bank, Queensway Branch. She also sought that the tenants do give vacant possession for failure to pay rent to the landlord’s account.

28. The said application is premised upon an affidavit of even date wherein it is deposed that the tenants had been notified to pay rent into the said account vide letters marked ‘ZWM1’ but had failed to do so.

29. The application was accompanied by a reference dated December 22, 2021 raising the same complaint as the application.

30. The application was subsequently amended on January 6, 2021 to include Solomon Irungu Mwangi and Alex Kimani Mwangi as the 6th and 7th Respondents. The 6th Respondent is the 4th Respondent in Nairobi BPRT NO E599/2021 while the 7th Respondent is his younger brother.

31. On January 20, 2022, the matter came up for hearing of the application and the same was allowed on the basis that there was no response and the Respondents had not attended court.

32. On February 7, 2022, Solomon Irungu Mwangi filed an application seeking stay of the orders of January 20, 2022 as well as their setting aside. He also seeks for unconditional leave to defend the matter on the grounds that the orders were obtained without effecting service of court process. The same is supported by a comprehensive affidavit of even date. The application was considered on February 7, 2022 andexparte orders of stay granted pending hearing inter-partes.

33. The said Solomon Irungu Mwangi also filed a replying affidavit to the application by Zaweria Wangari. The replying affidavit was sworn on February 24, 2022. He deposes that the building standing on the suit premises was constructed by his late father and has seven (7) storeys although the ground was owned by Laban Kingori Macharia (deceased). He deposes that his late father entered into tenancy agreements with the tenants as landlord.

34. The said Solomon Irungu Mwangi states that the second case was filed in the backdrop of orders issued in favour of the tenants when the applicant was perfectly aware of the said case. There was lack of disclosure.

35. According to the 6th Respondent (Solomon), the High Court had ordered sale of the suit plot with proceeds for the land being shared out to the beneficiaries of the estate of Laban Kingori Macharia (deceased) while the proceeds for the building would go to the estate of John Mwangi Kingori (deceased).

36. In Nairobi BPRT NO E152/2022, the complaint was lodged by one Eunice Njoki Mwaura on February 11, 2022 against Zaweria Wangari Mwangi (original 1st Respondent) and Solomon Irungu Mwangi (original 4th Respondent) seeking for an order to open and allow her access to a business premises within the suit premises as well as restrain the Respondents from interfering with her quiet enjoyment and occupation of the suit premises. She seeks to be allowed to continue paying rent to the 1st Respondent until the hearing and determination of the application.

37. The applicant complains that the 2nd Respondent closed her business premises with all her tools of trade inside and threatened to evict her from the suit premises on February 10, 2022. She states that she has been paying rent to the 1st Respondent as her landlord.

38. On February 14, 2022, the tenant/applicant was granted ex-parte orders for reopening of the premises and to continue paying rent to the 1st Respondent.

39. On March 2, 2022, the 2nd Respondent (Solomon Irungu Mwangi) moved this Tribunal seeking for setting aside or variation of the orders issued on February 10, 2022 pending hearing of the reference on the grounds that the same were obtained through concealment of the fact that she was not a tenant in the suit premises having vacated therefrom and that the premises was in occupation of another tenant. As such the orders were impossible to enforce as the premises was in possession of a new tenant as evidenced by annexure ‘SIM-1’.

40. On March 2, 2022, the said orders were stayed by Hon. Cyprian Mugambi, Chairman who considered the application ex-parte. The application was directed to be served for hearing inter-partes.

41. The Applicant (Eunice Njoki Mwaura) swore a replying and supplementary affidavits on March 14, 2021 in respect of the applications dated March 2, 2022 and her application dated February 11, 2022.

42. The applicant reiterates that the suit premises was being managed by three (3) executors of the will of deceased proprietor as per grant of probate marked ‘ENM-1’. She therefore contends that those named in the grant are the legitimate landlords.

43. As such, the said Solomon Irungu Mwangi is said not to be entitled to let or manage the premises without express authority of the court that confirmed the grant of probate.

44. The application contends that she leased the premises on November 16, 2021 from the executors of the will and as such the said Solomon Irungu Mwangi could not lease the premises on February 8, 2022. The tenant contends that she occupies the whole of 1st Floor in the premises which was let to her by Zaweria Wangari Mwangi as per annexure marked “ENM-1” being the lease.

45. The Applicant states that the 2nd Respondent hired goons and/or ‘mungiki’ adherents to close her premises and steal her goods without lawful justification and that the continued closure of the business has rendered her destitute.

46. In a replying affidavit sworn on April 11, 2022, the 2nd Respondent states that the applicant has contradicted in material manner the depositions made by Zaweria Wangari Mwangi on the alleged tenancy especially the agreed rent and deposit paid. He questions why the tenant is suing her landlord against whom she has no cause of action. He denies that Zaweria had any authority to lease out the premises to the applicant as the same always belonged to his father whose estate is entitled to proceeds of sale of the building.

47. The deponent states that the application is a scheme by the 1st Respondent to use the applicant (Eunice Njoki Mwaura) to establish a claim for rental income. The rent payable according to the applicant is Kshs 40,000/-. She does not allude to any rent deposit neither does she attach any lease agreement. The applicant and 1st Respondent have sworn affidavits at cross purposes.

48. According to the deponent, the building on LR NO 209/1413/28 always belonged to his father and the High Court has repeatedly ruled that the land and the building should be sold and the proceeds relating to the land be distributed among the three houses forming the estate of Laban Kingori Macharia (deceased grandfather) while the proceeds of the building should go to the estate of John Mwangi Kingori (His late father).

49. It is deposed that the administrators of the estate of Laban Kingori Macharia (i.e Francis Mwangi Kingori and Anthony Maina Kingori) have admitted the said fact vide their affidavit sworn on November 26, 2021 in Tribunal case NO E599 of 2021 and included the High Court order issued on April 22, 2016 by Honourable Lady Justice LA Achode.

50. As such, the 1st Respondent is accused of creating havoc through Tribunal case NO E152 of 2022 and ought to be stopped by this Tribunal. The sitting tenants should continue paying rent to the estate of John Mwangi Kingori (deceased) until the property known as Accra Hotel is sold as per the High Court order according to Solomon Irungu Mwangi.

51. I have seen the replying affidavit sworn on March 17, 2022 by one John Ngaruro Mugo in Tribunal case NO E 599 of 2021 in his capacity as Managing Director of Alfajiri Pharmaceuticals wherein it is deposed on his own behalf and on behalf of John Gicheru and Jackson Gikonyo as directors of Accra Med Chemist and Spar communication respectively as tenants in the suit premises.

52. The said tenant deposes that they have been tenants in the suit premises for a long period and that their lease agreements were renewed for Ten (10) years six months. The said lease was entered into between them and the previous landlord one John Mwangi Kingori (now deceased). The agreement is marked as annexure ‘JM-1’.

53. The said affidavit is sworn in response to the various applications dated October 19, 2022, January 18, 2022, and February 11, 2022.

54. The deponent accuses the administrators of the estate of Laban Macharia for harassment since their former landlord passed on. It is the position of the tenants that what is before the Tribunal is not a tenancy dispute as they had not refused to pay rent and none had arrears.

55. According to the deponent, they have been paying rent to the 4th and 5th Respondents and as such the 1st respondent should be restrained from demanding non-existent rent arrears. The rent payment receipts are attached to the affidavit as annexture ‘JM – 2”. All the rent payments are made to the estate of John Mwangi Kingori (deceased) who is their former Landlord.

56. It is the deponent’s position that what needs to be clarified is where they should pay rent and to whom the rent should be paid. The Tenants however maintain that they should continue paying rent to the 4th and 5th respondents as the administrators of their previous landlord pending resolution of the family dispute in the High Court.

57. All the applications were directed to be canvassed by way of written submissions and the applicants and all the respondents filed submissions. I shall consider the submissions together with the issues for determination.

58. Going by the pleadings, the following issues arise for determination in this matter;a.Who is entitled to the rental income accruing from the commercial building standing on LR NO 209/1413/28 otherwise known as ACCRA HOTEL in Nairobi City.b.Whether the applicants/respondents are entitled to the reliefs sought in their applications and references dated October 19, 2021, December 22, 2021 and February 11, 2022 in BPRT No E599 of 2021 and E807 of 2021. c.Whether the applicant and the 2nd respondent in BPRT No E152 of 2022 are entitled to the reliefs sought in their applications and complaint dated February 11, 2022 and March 2, 2022 respectively.d.Who is liable to pay costs of the consolidated suit.

59. As remarked at the beginning of the ruling, the dispute in all the three consolidated references revolves around the issue as to who is entitled to payment of rent in respect of the business premises erected on LR NO 209/1413/28 ACCRA ROAD, NAIROBI CITY as between the 1st, 2nd and 3rd Respondents on one hand and the 4th and 5th respondents on the other hand from the tenants in the consolidated references.

60. The applicants/tenants in NAIROBI BPRT NO E599/2021 entered into tenancy agreement with the late John Mwangi Kingori in respect of the suit premises at a monthly rent of Kshs 66,000/- for each shop. They have occupied the business premises for the last 17 years. They were paying rent to the said John Mwangi Kingori (deceased) until his demise on January 2, 2021.

61. Upon the demise of their said landlord, the applicants started paying rent to the 4th and 5th Respondents who are the administrators of the estate of John Mwangi Kingori (deceased) and were not in any rent arrears.

62. The tenants depose that although they were aware of Nairobi HC Succession Cause NO 16 of 1988, they were not parties to the said case.

63. Sometimes in early October 2021, the 1st, 2nd and 3rd respondents accompanied by their agents went to the applicant’s businesses and threatened to lock out all employees and customers if they did not pay rent to them. The 1st, 2nd and 3rd respondents instructed Twin Star Auctioneers who proclaimed their goods as a result of which the applicants decided to seek for the honourable Tribunal’s protection as they did not owe any rent to the claimants. The proclamation of attachment is marked “EMM – 3”.

64. The 1st, 2nd and 3rd Respondents are the executors of the will of the late Laban Kingori Macharia pursuant to a grant of probate issued in Nairobi HC Succession Cause No 16 of 1988 on July 13, 2021 marked as annexure “ZWM1” attached to the replying affidavit of 1st respondent sworn on November 2, 2021. Previously, the said estate was administered by one John Mwangi Kingori (deceased) who was also the applicant’s landlord.

65. The 4th and 5th respondents are the administrators of the estate of John Mwangi Kingori (deceased) having been so appointed vide NAIROBI H.C Succession Cause No E593 of 2021 as per the grant marked annexure “SN1” attached to the replying affidavit of the 5th respondent sworn on November 2, 2021.

66. It is not in dispute that the property known as LR No 209/1413/28 is the subject matter of NAIROBI HC Succession Cause No 16 of 1988. It is the contention of the 4th and 5th Respondents that the High Court while making a ruling in respect of a contest on distribution of the estate found that the land belonged to the late Laban Kingori Macharia while the commercial building standing thereon was developed by his son, the late John Mwangi Kingori (deceased). The said ruling has not been set aside according to the 4th and 5th respondents and as such the rental income accruing therefrom is meant to benefit the estate of John Mwangi Kingori (deceased) and not the estate of Laban Kingori Macharia (deceased). On the other hand, the 1st, 2nd and 3rd respondents claim that the rental income accruing from the commercial building ought to be collected by them as executors of the estate of Laban Kingori Macharia (deceased).

67. According to the applicants/tenants, they recognize the 4th and 5th respondents as their landlords and have been making payments of rent to them. The confusion on rent payment according to the applicants in their submissions was occasioned by demands for the same rent by the 1st, 2nd and 3rd respondents. The applicants came to the tribunal to seek protection against ppossible eviction and distress for rent against their properties.

68. The 1st respondent through the firm of M/S Mbichi Mboroki & Kinyua Advocates submit that the estate of Laban Kingori Macharia (deceased) is entitled to the rental income accruing from the suit property as the same cannot be subject matter of two succession causes as alleged by the 4th and 5th Respondents. It is submitted, that it is either the suit property belongs to Laban Kingori or his late son John Mwangi Kingori. It is submitted that the estate of a deceased person devolves to the executors of the will (where the deceased died testate) and to the administrators where the deceased died intestate. According to the 1st respondent, she was entitled together with the 2nd and 3rd respondents to collect rent and manage the suit property.

69. It is submitted that the tenants ought to be ordered to pay rent to the 1st, 2nd and 3rd respondents and that if the Tribunal was in doubt, the same should be deposited with it pending for the directions by the High Court.

70. The tenants also filed a second copy of submissions by the firm of Faith Akoth Okech & Co Advocates. It is submitted that the tenants signed a lease with one John Mwangi Kingori (now deceased) and enjoyed peace even after his demise as they continued to pay rent to the administrators of the estate of their former landlord being the 4th and 5th respondents. They have paid rent faithfully to date. As such it is submitted that they have proved their case for injunction and require a determination on the issue as to where and to whom they ought to pay rent to avoid further confusion.

71. The 4th respondents also filed their submissions through the firm of Mwangi Chege & Co Advocates. It is submitted that the tenants entered into a tenancy agreement with the late John Mwangi Kingori in the year 2004 in respect of the suit property at an agreed monthly rent of Kshs 60,000/- for each premises. They paid rent to the said John Mwangi Kingori until his demise on January 22, 2021. Upon his death they continued to pay rent to his legal representatives being the 4th and 5th respondents.

72. It is submitted that the jurisdiction of this tribunal extends to resolving disputes between landlords and tenants and that in this case, the landlord is defined by the agreement as well as the tenants. The 1st, 2nd and 3rd respondents have not claimed to be landlords in their various affidavits filed herein. They have no tenancy agreement with the tenants and neither have the applicants paid rent to them. They have not claimed that they own the seven storey building standing on LR NO 209/1413/28. The applicants were never of the late Laban Kingori Macharia but of John Mwangi Kingori during their lifetimes.

73. It is further submitted that there is no landlord/tenant relationship between the applicants and the 1st, 2nd and 3rd respondents. They should not have demanded rent nor levied distress against the applicants. The property was built by the late John Mwangi Kingori (deceased) who was subsequently registered as proprietor. His certificate of title has not been challenged or canceled according to the 4th and 5th Respondents’ submissions.

74. It is further submitted that the High Court while distributing LR No 209/1413/28 ordered that the value of the land (ground) and the building be separated as the building belonged to the 5th respondent’s deceased husband. She attached the High Court ruling marked “SN2” to prove the said distribution. The 1st – 3rd respondents have not controverted the said depositions.

75. As such, it is submitted that the 1st and 3rd respondents had no capacity to instruct auctioneers to levy distress and to threaten the applicants with eviction in a controlled tenancy.

76. I have examined the submissions by all the parties and note that the issue of who is entitled to proceeds of the commercial building erected on LR No 209/1413/28 was settled by the High Court ruling marked “SN2” attached to the replying affidavit of the 5th respondent sworn on November 2, 2021. At paragraph 4 of the ruling, Lady Justice L.A Achode observed as follows;“4. The estate of the deceased comprised of ten (10) properties. There was no dispute regarding how the nine (9) properties were distributed to the beneficiaries by the court. The executor disputed the manner in which the property registered as LR No 209/1413/28, Accra Road, Nairobi was distributed by the court. This was a commercial property. It was common ground that after the death of the deceased, the executor improved the value of the property by constructing several floors above the two (2) floors that already existed at the time of the deceased’s death. The parties were in agreement that the portion of the property that was to be distributed to the beneficiaries was the land itself and not the developments thereon. The executor too conceded that the land belonged to the deceased and was therefore part of the estate which was available for distribution. This far there was no dispute between the beneficiaries.”

77. At paragraph 6, the court went on to observe as follows;“The court proceeded to ascribe the value of Kshs 75 million to the suit parcel of land using the two valuation reports taking into consideration the nature of the dispute between the parties to the suit. The court then ordered the executor to pay to the estate, the said sum of Kshs 75 million which was to be distributed equally between the three (3) houses.”

78. It is therefore clear that the question as to who is entitled to the proceeds of the commercial building erected on the suit property was determined by the High Court in the said succession proceedings. The late John Mwangi Kingori was to benefit with the value of the building while the estate of Laban Kingori Macharia (deceased) was to get the value of the land.

79. The foregoing being the position, it means and I hold that the rental income accruing from the commercial building standing on the suit property belongs to the estate of the late John Mwangi Kingori (deceased). Indeed there is absolutely no evidence that the rental income was ever claimed by the late Laban Kingori Macharia (deceased) during his lifetime or any of the beneficiaries of his estate during the lifetime of John Mwangi Kingori (deceased). No application for accounts or mention of the rental income is alluded to the High Court succession proceedings.

80. There is no dispute that the applicants/tenants were the tenants of the late John Mwangi Kingori (deceased) since the year 2004. Their lease agreement was renewed by the deceased landlord as evidenced by annexure “JNM – 2” for a period of ten (10) years six (6) months with effect from April 1, 2020. He was collecting rent therefrom during his lifetime and was not accounting to anybody else including the 1st to 3rd Respondents. It is therefore inconceivable that the latter would have the audacity to demand rent from the said tenants.

81. Upon demise of the said John Mwangi Kingori (deceased), the tenants continued paying rent to the 4th and 5th Respondents who are the administrators of the late Landlord’s estate. This arrangement was not questioned until the 1st to 3rd respondents started to demand that the rental income be remitted to them in their capacity as executors of the estate of Laban Mwangi Kingori (deceased). It is my considered holding that the estate of Laban Mwangi Kingori is not entitled to the rental income accruing from the commercial building standing on the land comprising the estate in view of the High Court ruling of April 22, 2016. The said estate was only entitled to the proceeds of the land and not the building upon sale thereof. There is no logic that the estate would be entitled to the rental income in the pendency of the ordered sale.

82. I agree with submissions of counsel for the 4th and 5th respondents that in absence of any landlord/tenant relationship between the applicants and the 1st to 3rd respondents, they could not instruct auctioneers to levy distress for rent against the former. They have not claimed that they own the suit premises neither have they established any basis for payment of rent to them given that the estate of Laban Kingori Macharia is only entitled to the proceeds of sale of the land and not the building.

83. In regard to the second issue as to whether the applicants/respondents are entitled to the reliefs sought in their applications and references dated October 19, 2021, December 22, 2021 and February 11, 2022, I intend to deal with each application separately.

84. The application dated October 19, 2021 is by the Tenants wherein they seek for restraining orders against the 1st, 2nd and 3rd Respondents from interfering with their businesses on the suit property. They complain that the said Respondents have been demanding rent and even sent auctioneers to levy distress against them. They have demonstrated that they had already remitted rent to the 4th and 5th respondents who are their landlords. I have already held that the 1st, 2nd and 3rd respondents are not entitled to collect rent from the premises in absence of any landlord/tenant relationship between them and the applicants. As such, I will exercise my discretion to stop the illegal actions of the 1st, 2nd and 3rd respondents in line with the Court of Appeal decision in the case ofAlkman and others Vs Muchoki & Others[1982] at eKLR page 4 where it was held that the court ought never to condone and allow to continue the flouting of the law. Those who infringe the rightful title of others and brazenly admit it ought to be restrained by injunction. Equity will not assist law breakers. I am therefore satisfied that on the materials placed before me, the applicants/tenants have established the principles espoused in the case of Giella Vs Cassman Brown & Co Ltd [1973] EA 358.

85. The application dated December 22, 2021 was filed by the 1st Respondent seeking for payment of monthly rent by the tenants/applicants herein to account number 45317XXXXX – 397XXXX, ABSA BANK, Queensway Branch. She further seeks that the tenants give vacant possession for failing to pay rent to the landlord’s account. The basis for the said application is that the 1st respondent wrote a demand letter to the tenants marked “ZWM1” but the tenants failed to pay rent as directed and continued to remain in the suit premises without justifiable reason.

86. I have already found that the 1st respondent is not entitled to collect rent from the suit premises as the rental income accruing therefrom belong to the estate of the late John Mwangi Kingori (deceased). In the premises, the said application is a non-starter and is a candidate for dismissal.

87. The third application dated February 11, 2022 is by one Eunice Njoki Mwaura who claims to be a tenant of the 1st Respondent in respect of a business premises situate within the suit property. She is seeking for an order to restrain the 2nd Respondent (Solomon Irungu Mwangi/5th Respondent herein) from interfering with her quiet occupation and lawful enjoyment of the suit premises. She further seeks that she be ordered to continue paying rent to the 1st Respondent (Zaweria Wangari Mwangi). Interim orders were granted on February 14, 2022 but were subsequently challenged by the 5th Respondent through an application dated March 2, 2022 in which he sought for setting aside and/or variation of the orders on the grounds that the applicant vacated the suit property and the premises was in occupation of another tenant. she failed to disclose to the court that she was not a tenant at the time of filing the application. The applicant is said to have never paid rent to the 5th respondent.

88. It is the 5th respondent’s case that the orders issued in favour of the applicant were incapable of being enforced as the premises had been let out to one Monica Gathoni Ndungu in terms of annexure “SIM – 1” dated February 8, 2022. The orders were as such obtained through concealment of material facts.

89. The applicant filed a replying affidavit sworn on March 14, 2022 wherein she states that the suit property was under the management of three (3) executors of the will of the deceased proprietor one Laban Kingori Macharia as per the grant of probate with written will annexed marked “ENM1”. The 5th Respondent is not one of the executors of the will and according to the applicant has no mandate or capacity to let or manage the suit property.

90. It is the applicant’s case that she let the suit premises on November 16, 2021 from the executors of the late Laban Kingori Macharia and as such the 5th Respondent could not have leased the premises on February 8, 2022 and the said lease is falsified.

91. The 5th Respondent also filed a replying affidavit sworn on April 11, 2022 giving the history of the suit property. The 5th respondent points out that while the applicant claims to have leased the premises at Kshs 40,000/- per month, she does not talk of any deposit.

92. According to the 5th respondent, the 1st respondent had no capacity or authority to lease the suit premises to the applicant as the building belonged to the late John Mwangi Kingori (deceased).

93. On the other hand, the 1st Respondent filed a replying affidavit sworn on March 28, 2022 in which she supports the application by the Applicant. It is on that basis that the 5th respondent alleges that the suit is being prosecuted in collusion of the two to create a non-existent tenancy.

94. It is curious to note that the applicant has not addressed in her supplementary affidavit the allegation by the 5th respondent that she vacated the suit premises and that the same was in occupation of another tenant. Whereas she claims to have leased the premises from the 1st Respondent, the lease attached to her supplementary affidavit shows that the same was entered into with all the three (3) executors of the estate of Laban Kingori Macharia. The agreed rent is indicated to be Kshs 40,000/- per month. In view of my decision that the rental income accruing from the building erected on the suit property belongs to the estate of John Mwangi Kingori, I am not convinced that the applicant is entitled to the orders sought against the 5th respondent herein. He is entitled to claim rent against the person in occupation of the suit premises whether it is the applicant or the person known as Monica Gathoni Ndungu.

95. In regard to the application dated March 2, 2022, I find and hold that the 5th respondent who is the applicant therein is entitled to the reliefs sought therein and I proceed to set aside the orders issued on February 16, 2022. Since the complaint raises the same issues as the application, this ruling shall apply to the complaint under section 12(4) ofCap 301, Laws of Kenya which empowers this Tribunal to conduct investigations and make such order as it deems fit.

96. The final issue relates to costs of the consolidated references which matter is within the Tribunal’s jurisdiction under section 12(1)(K) of Cap 301 Laws of Kenya. The dispute herein was precipitated by the 1st, 2nd and 3rd Respondents who sought to recover rent against the applicants despite being aware of the orders made in the High Court in regard to distribution of the suit property. They acted with impunity in doing so and this Tribunal is entitled to award costs to the applicants as well as the 4th and 5th respondents. The applicant in NRB BPRT No E152/2022 having failed in her complaint shall pay costs to the 2nd respondent therein (5th respondent herein). The 1st respondent therein having supported the complaint is not entitled to any costs in this matter.

97. In conclusion, the following final orders commend to me:a. That the estate of the late John Mwangi Kingori (deceased) represented by Susan Nyokabi Mwangi and Solomon Irungu Mwangi is exclusively entitled to the rental income accruing from the commercial building erected on LR No 209/1413/28 otherwise known as Accra Hotel, Accra Road, Nairobi.b. That the Applicant’s/Tenant’s application dated October 19, 2021 in Nairobi BPRT case No E599 of 2021 is allowed and the 1st, 2nd and 3rd respondents are hereby restrained by themselves, their agents, employees, personal representatives, assigns, children or servants from evicting, harassing, collecting rent or in any other way interfering with the tenant’s businesses conducted at the commercial building situate on LR No 209/1413/28 otherwise known as Accra Hotel, Accra Road, Nairobi.c. That 1st Respondent’s application dated December 22, 2021 is dismissed with costs.d. The application dated February 11, 2022 by Eunice Njoki Mwaura is hereby dismissed with costs to the 2nd Respondent therein (5th Respondent herein).e. The application dated March 2, 2022 by the 2nd Respondent (5th Respondent herein) in BPRT No E152 of 2022 is allowed and the interim orders issued on February 16, 2022 are hereby vacated/set aside.f. The 1st, 2nd and 3rd Respondents shall pay costs of Kshs 75,000/- to the Applicants in respect of this case.g. Eunice Njoki Mwaura, the Applicant in NAIROBI BPRT Case NO E152 of 2022 shall pay the 2nd Respondent/Solomon Irungu Mwangi Kshs 25,000/- as costs in the said case.h. Pursuant to section 12(4) of Cap 301, Laws of Kenya the ruling herein shall apply to the references/complaints in the respective cases.

HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED THIS 15TH DAY OF JULY, 2022 IN THE PRESENCE OF KIMANI HOLDING BRIEF FOR ESUCTIN FOR THE 1ST AND 2ND TENANT/APPLICANT, MWANGI CHEGE FOR THE 4TH AND 5TH RESPONDENT NJIRAINI FOR THE 2ND AND 3RD RESPONDENT, MISS OKETCH FOR THE 1ST, 2ND AND 3RD RESPONDENT IN E807/2021, KURIA FOR THE APPLICANT IN E152/2021 AND IN THE ABSENCE OF THE 1ST RESPONDENT.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL