[2021] KEBPRT 262 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 828 OF 2019

(NAIROBI)

GURMUKH SINGH………......……………..….…….....................TENANT/APPLICANT

VERSUS

PARDEEP GHATAHORA…………..…..………………….LANDLORD/RESPONDENT

RULING

1. The Tenant/Applicant has raised a notice of preliminary objection dated 1st July 2020 in the following terms;

“That the Landlord Pardeed Ghatahora lacks capacity to institute this suit and shall ask this Tribunal to dismiss the entire suit with costs.”

2. The parties have filed their respective submissions on the preliminary objection and I proceed to summarize the same as follows;

3. The Tenant’s Submissions are to the effect;

a.The law relating to preliminary objections has been defined in the case of Mukhisa Biscuits Manufacturing Company Ltd Vs West End Distributors and even more clearly in the case of Oraro Vs Mbaja [2003] KLR 141.

b. The basis for the preliminary objection is that the Landlord/Respondent did not have capacity to unilaterally propose or alter any change to the tenancy to wit increasing the rent payable since the property is held under tenancy in common.

c. That under section 91(1) of the Land Registration Act Co. tenancy means ownership of land by two or more persons in individual shares and includes joint tenancy or tenancy in person.

d. Under section 91(6) of the said Act, no Tenant in common shall deal with their individual share in favour of any person other than another Tenant in common, except with the consent in writing of the remaining Tenants but such consent shall not be unreasonably withheld.”

e. That section 79 and 83 of the Laws of Succession Act vests jointly the estate of the deceased on the personal representatives appointed under the grant.

f. That any dealing of a property that is held under a tenancy in common must be by all the Tenants. The Respondent herein did not implore the Co-tenant in proposing to alter the term of the lease.

g. That since the letters of administration appoint two administrators, the administrators must act jointly in the administration of the estate.

4. The Landlord’s submissions in the response may be summarized as follows;

a. That both parties admit to the existence of a tenancy relationship between Gurmunh Singh and the deceased Gurman Singh.

b. The parties have further admitted to the Landlord/Respondent herein being the administrator of the estate of the deceased Gurman Singh, father to the Respondent.

c. That the Tenant has always paid rent and dealt with the late Gurman Singh who was managing the property on his behalf and on behalf of the estate of Jasisant Singh.

d. That for all purpose3s, the deceased Gurman Singh was the Landlord to the Tenant, a fact never denied by the Tenant.

e. That the Tenant still banks all rent in the account of Gurman Singh.

5. It is not disputed that the Respondent is the son of the deceased Gurnan Singh. It is also common ground that the Respondent is the administrator of the estate of the deceased Gurman Singh. The Tenant herein does not contest the letters of administration issued in favour of the Respondent herein. The further affidavit of the Respondent sworn on 8th April 2021 shows that the suit property is registered in the names of Gurnam Singh and Jaswant Singh (both deceased). Letters of administration in favour of the Estate of Jaswant Singh were granted to Pritam Kaur and Gurman Singh and for the estate of Gurman Singh the letters of administration were granted to the Respondent herein.

6. The Tenant’s affidavit sworn on 12th June 2020 at paragraph 4 admits that the estate of Gurnam Singh and Jaswant Singh were dully represented by the said Gurman Singh prior to his death. Taking into account that Jaswant Singh died way back in 1976 and taking account of the averment by the Respondent in his affidavit sworn on 8th April 2021 to the effect that Pritam Kaur, the wife of the deceased Jaswant Singh is domiciled in the United Kingdom, it would be safe to conclude that the deceased Gurnam Singh, continued making decisions concerning the suit premises and dealing with the Applicant.

7. At paragraph 4 of the Applicant’s affidavit sworn on 18th June 2020, the following points emerge;

a. That the Applicant and other Tenants have always paid land rent and rates for the demised premises.

b. That the Applicant’s company has carried out major repairs to the premises.

c. That failure to claim the above amounts was due to an understanding between the Applicant and the deceased Gurwan Singh, representing himself and the deceased Jaswant Singh that the repairs would be taken into account in the event of future rent revisions.

8. The Applicant, while going into the above agreements to repair and pay rent and ground rates for the premises never raised the issue of the common tenancy between the deceased and neither did he demand the participation of the other representatives of the deceased Jaswant Singh. The Tenant accepted the active role of the deceased Gurmukh Singh as his Landlord and has not stated that he paid rent to any other account other than the one held by the deceased Gurmukh Singh.

9. I therefore find the said Gurmukh Singh to be the Landlord as envisaged in the definition found in Cap 301 of the Laws of Kenya where “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.

10. The Applicant’s main complaint is that the Respondent herein did not involve the other Co-tenant in proposing to alter the terms of the lease. As I have observed above, the Tenant did not raise this issue when he was dealing with the deceased Gurmukh Singh on matters that substantially affected the tenancy between the parties. There is no good reason why that issue should be raised now.

11. In my view, the validity of this issue would arise where one of the Co-Tenants or Co-administrators complains that the Respondent herein is dealing with the property held in common to the detriment of the other common Tenant. Not so in this case. The Applicants zeal protecting the “other Tenant” is uncalled for as the Respondent herein only seeks to increase the rent payable upon the premises, such increament of rent can only benefit the common tenancy.

12. The Applicant is therefore not dealing with his undivided share in favour of any person other than the Tenant in common and in whose favour any increament in rent would operate.

13. The Respondent herein has in his favour letters of administration for the estate of his deceased father who was also a co-administrator of the estate of the deceased Jaswant Singh. The Applicant therefore occupies the same position occupied by his deceased father as far as the suit premises is concerned. He therefore has capacity to issue the Landlord’s notice to increase rent under section 4(2) of the Act.

14. In conclusion and following from the above, the Applicant’s notice of preliminary objection dated 1st July 2020 is dismissed with costs to the Landlord/Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 30thday of August, 2021 in the presence of Miss Shabana for the Landlord and in the absence of Ondieki for the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

The reference will be heard on 18th October 2021.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL