[2025] KEBPRT 199 (KLR)

Jamia Mosque Bungoma Committee v Abdala; Bungoma Muslim Association (Interested Party) (Tribunal Case E122 of 2024) [2025] KEBPRT 199 (KLR) (10 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 199 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E122 of 2024

P Kitur, Member

February 10, 2025

Between

Jamia Mosque Bungoma Committee

Landlord

and

Nuru Salim Abdala

Tenant

and

Bungoma Muslim Association

Interested Party

Ruling

A. Parties 1. Jamia Mosque Bungoma Committee is is a religious organization duly registered by the Registrar of Societies under the Laws of Kenya.

2. The firm of Kweyu & Company Advocates represents the Landlord.

3. Nuru Salim Abdala, the Respondent, is a Tenant occupying the premises on plot 341 of Bungoma Township Municipality (hereinafter referred to as ‘the suit premises’).

4. The firm of J.W Nafuye & Company Advocates represents the Tenant.

5. Bungoma Muslim Association is an Interested Party in this suit.

6. The firm of Onsando Getanda & Company Advocates represents the Interested Party.

B. The Dispute Background 7. Before this tribunal for determination is the Notice of Motion Application dated 24th October 2024 filed by the Interested Party under section 12(i) and Section 13 of the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya seeking the following orders:i.Spentii.That this Honourable Court be pleased to issue stay of execution of the Orders issued on the 24th October 2024 directing the tenant to continue paying rent to the respondent who are not the actual Landlord and all consequential orders issued pursuant thereto pending the hearing and determination of this application.iii.That the Honourable Court be pleased to make an order to join the interested party herein either as a respondent or an interested party.iv.That the Honorable Court be pleased to lift, vary or rescind the orders issued on the 24th October 2024. v.That the court be pleased to find that it was misled by the Respondent to make the order given on 24th October 2024 through misrepresentation and/or concealment of material facts by the Respondent Jamia Mosque Bungoma Committee and subsequently make an order that the interested party be compensated for exemplary damages.vi.That the costs of this suit be provided for.

8. The Application was supported by the affidavit of Omar Abdallah Chesula, sworn on 24th October 2024 in his capacity as the secretary of the Applicant/Interested Party, He stated that the suit premises are registered under the names of the trustees of the Applicant/Interested Party and not the Jamia Mosque Bungoma Committee. He further explained that a lease agreement was entered into between them and the Tenant on 1st June 2023, and rent had been collected from the Tenant since the execution of the lease agreement until the tribunal's court orders directing the Tenant to pay rent to the Jamia Mosque Bungoma Committee.

9. The Landlord herein filed a Replying Affidavit, sworn by Salim Mwanga alias Patrick Mwanga on 5th November 2024, as the Vice Chairman of the Jamia Mosque Bungoma Committee. The affidavit contended that Omar Abdallah's affidavit was legally improper and should be struck out due to his lack of locus standi, as he was not an official of the Interested Party Association. The Landlord attached a letter from the registrar of societies listing the association's officials, which identified someone else as the secretary. The affidavit argued that the purported interested party had not been enjoined by the tribunal and, therefore, could not seek stay of execution orders. Such orders could only be granted once the court was satisfied with their official status within the association and their locus to sue on its behalf. The affidavit emphasized that the Landlord was recognized as the lawful landlord of the premises, and ownership issues had been previously resolved by the court, which dismissed a preliminary objection on 13th August 2024. It claimed that the tenancy agreement dated 1st June 2023 was fraudulent, entered into by individuals posing as officials of the Bungoma Muslim Association, and that the receipts presented by the interested party were forged to appear as rent payments for the property. The affidavit concluded that the Landlord remained the true landlord as per the lease agreement dated 5th March 2020 and requested the dismissal of the application dated 24th October 2024 with costs awarded to the Landlord for lack of merit.

10. The Interested Party filed a Supplementary Affidavit in response to the Landlord's Replying Affidavit. The affidavit argued that the power of attorney granted to the Landlord's representative must be registered to have any legal effect. The affidavit asserted that the affiant was indeed the secretary of the association according to its constitution. It also contended that the officials listed in the registrar of societies' document had vacated their terms and were no longer officials. The Interested Party relied on an annexure marked OAC-3, which contained a list of the elected officials of the association, showing that the affiant was the secretary of the organization. However, the secretary failed to provide evidence from the registrar of societies confirming their status as the registered official secretary of the Bungoma Muslim Association.

11. During the interparties hearing on 14th November 2024, the court directed the parties to dispose of the application dated 24th October 2024 by way of written submissions. All parties complied by filing their respective submissions.

12. In light of the above, the following issues arise for determination.

C. List Of Issues For Determination 13. Whether the Applicant is entitled to the prayers sought in the application dated 24th October 2024.

D. Analysis And Findings 14. The principles for joinder of an interested party were articulated in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR, where the Supreme Court stated that an interested party is one who has a stake in the proceedings and will be affected by the court's decision. The party must show that their interest is proximate and not peripheral, and that they will suffer prejudice if not enjoined.

15. In the case of Francis Karioko Muruatetu & another v Republic & 5 others [2016] eKLR, the Supreme Court reiterated that enjoinment is discretionary and requires the applicant to demonstrate a clear interest, potential prejudice from non-joinder, and relevant submissions not replicated by other parties.

16. In this case, the Interested Party has demonstrated a legitimate interest in the proceedings by providing evidence of a lease agreement and rent collection. Therefore, this tribunal finds that they should be enjoined as a Respondent.

17. Regarding the stay of execution, the tribunal must consider whether the stay is necessary to preserve the status quo. Given the contested ownership and rent collection, it is just and equitable to grant a stay pending the determination of the main application.

18. On prayer (4) of the application on Lifting, Varying, or Rescinding Orders, the tribunal must be satisfied that there was a misrepresentation or concealment of material facts to lift, vary, or rescind previous orders. The Interested Party has not provided sufficient evidence to substantiate the claims of misrepresentation and fraud by the Respondent. Therefore, the orders issued on 24th October 2024 remain in effect.

19. On the Applicant’s claim for exemplary damages, this tribunal is of the view that exemplary damages are typically awarded in cases where the Respondent's conduct has been particularly egregious. In the Court of Appeal judgment of Godfrey Julius Ndumba Mbogori & another V. Nairobi City County [2018] eKLR it was stated as follows:-“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes v Barnard [1964] AC 1129 where Lord Devlin set out the categories of cases in which exemplary damages may be awarded which are: i) in cases of oppressive, arbitrary or unconstitutional action by the servants of the government, ii) cases in which the defendant?s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff and iii) where exemplary damages are expressly authorized by statute”.

20. The tribunal finds no evidence of such conduct by the Respondent to warrant the award of exemplary damages.

21. All the above considered, I do note that while this dispute has been presented before the Tribunal as one arising from a Landlord - Tenant relationship, the real issue, as has eventually come to light in the pleadings filed by the parties is with respect to who exactly are the rightful landlords as office holders after admitted wrangles in the running of an association.

22. The Intended Interested Party in their Supplementary Affidavit have annexed a Ruling in Kakamega BPRT CASE NO. E047 OF 2024, which Ruling alluded to another Ruling in KAKAMEGA BPRT CASE NO. E137 OF 2023 in which the issue of legitimate officials was dealt with.

23. Seeing that in this matter this present Application asserts that the Interested Party is the actual Landlord, issues of ownership abound, the dealing of which is outside the scope of this Tribunal’s jurisdiction.

24. In light of the foregoing, I proceed to Order as follows: -

E. Orders 24. In light of the foregoing, I proceed to Order as follows: -a.The Notice of Motion Application dated 24th October 2024 is partially allowed as follows:i.The Interested Party is enjoined as a respondent in these proceedings.ii.The orders issued on 24th October 2024 are varied that the Tenant shall be depositing monthly rent in this Tribunal and sharing proof of such payment with both the Landlord and the Interested Party every month pending resolution of the leadership dispute by relevant authorities.iii.Tenant to continue paying rent as and when it falls due.iv.Tenant shall be afforded quiet enjoyment of his business premise located in the suit property.v.Mention on 2nd August 2025 to confirm settlement of the leadership dispute.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 10TH DAY OF FEBRUARY 2025 IN THE ABSENCE OF THE PARTIES.HON P. KITUR - MEMBERBUSINESS PREMISES RENT TRIBUNAL