[2021] KEBPRT 669 (KLR)
The tribunal found that the agent was duly appointed by a binding High Court order to manage the property and collect rent, and that the tenant failed to disclose this material fact when seeking ex parte restraining orders. The tribunal held that such non-disclosure warranted setting aside or varying the orders. The...
Source-derived case information.
- Citation
- [2021] KEBPRT 669 (KLR)
- Parties
- Applicant: Veronicah Wangui Kararaho; Respondent: Hasham Laji Properties Ltd; Respondent: Sedco Consultants Ltd
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 23 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside/vary Ex Parte Orders
- Outcome
- Application to set aside and/or vary ex parte orders granted. Orders of 7th May 2020 set aside and varied.
- Judges
- Gakuhi Chege
- Legal Topics
- Controlled Tenancy, Ex Parte Orders, Material Non Disclosure, Rent Collection, Jurisdiction of Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronicah Wangui Kararaho
Applicant
Hasham Laji Properties Ltd
Respondent
Sedco Consultants Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside/vary Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders granted to the tenant on 7th May 2020 should be set aside or varied due to alleged material non-disclosure.
- 2 Whether the agent was properly appointed to collect rent and manage the property under a superior court order.
- 3 Whether the agent or landlord interfered with the tenant's quiet possession or sub-tenants in breach of the law on controlled tenancy.
Ratio Decidendi
The tribunal found that the agent was duly appointed by a binding High Court order to manage the property and collect rent, and that the tenant failed to disclose this material fact when seeking ex parte restraining orders. The tribunal held that such non-disclosure warranted setting aside or varying the orders. The tribunal further clarified that the agent is only entitled to collect rent from the tenant, not from her sub-tenants, and cannot compel the execution of long-term leases that would alter the controlled tenancy status. The tribunal also determined that any allegations of contempt by the agent must be addressed before the High Court, as it lacks jurisdiction to punish for...
Court Disposition
Application to set aside and/or vary ex parte orders granted. Orders of 7th May 2020 set aside and varied.
Orders
- The order given on May 7, 2020 is set aside and varied as specified.
- Rent payable by the tenant shall be remitted to the agent as and when due from March 2020.
Full Case Text
Judgment text and source record
34 paragraphs
Kararaho v Hasham Laji Properties Ltd & another (Tribunal Case 23 of 2020) [2021] KEBPRT 669 (KLR) (Civ) (13 August 2021) (Ruling)
Neutral citation: [2021] KEBPRT 669 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Civil
Tribunal Case 23 of 2020
Gakuhi Chege, Vice Chair
August 13, 2021
Between
Veronicah Wangui Kararaho
Tenant
and
Hasham Laji Properties Ltd
Landlord
and
Sedco Consultants Ltd
Agent
Ruling
1. Before me is an application dated 27th May 2020 in which the Landlord is seeking for setting aside and/or variation of the orders issued in favour of the Tenant on 7th May 2020 on account of failure to disclose material facts pertinent to this case.
2. The application is supported by the affidavit of Paul Kiprotich Ruttoh who is the Chief Executive Officer of the 2nd Applicant/Agent in which he deposes that the 2nd Respondent was appointed for purposes of rent collection vide an order given on 10th February, 2020 in Nairobi HCCC No. E148 of 2019 wherein it is stated at Clause 3 that Sedco Consultants Limited be appointed as sole managing agent of the properties belonging to Hasham Lalji Company Limited and Hasham Lalji and Sons Limited to collect and receive rent and to manage the properties listed in Clause 2 of the order.
3. The suit property is listed in clause 2(a) of the order as one of the properties belonging to the 1st Respondent/Landlord herein.
4. A letter dated 27th March 2020 was written by LJA Associates LLP to all tenants of the properties belonging to the 1st Respondent/Landlord informing them of the contents of the orders and requiring them to remit their rent henceforth to the 2nd Respondent/agent.
5. The tenants were requested through the same letter to execute formal leases so as to continue with their occupation of the suit property vide a letter dated 23rd March 2020 marked ‘PR-6’. This prompted the filing of this suit.
6. The tenant obtained restraining orders against the Respondents on 7th May 2020 from demanding, collecting or in any manner whatsoever from interfering with the quiet possession of the Tenant which frustrated the agent from undertaking its duties.
7. It is on that ground that the Respondents have instituted the instant application seeking that the orders given on 7th May 2020 be set aside and/or varied.
8. In response to the application, the Tenant filed an affidavit sworn on 22nd June 2020 stating that there was no material non - disclosure in that she received 2 demands from the landlord and agent and needed clarification from the Tribunal on who to pay as the tenancy was controlled.
9. The tenant maintains that there was interference with her sub-tenants citing annexture “PR-7” attached to the supporting affidavit to the application.
10. The Tenant complains that the agent is seeking to terminate the controlled tenancy by compelling her to sign a lease of over 5 years in order to oust the jurisdiction of this Tribunal.
11. The tenant contends that even if the agent has an order of the superior court, the same does not grant it authority to breach the law on controlled tenancy by ousting jurisdiction of the Tribunal and it intends to cause confusion in the tenancy relationship between her, the landlord and the sub-tenants.
12. The tenant further seeks that the agent should be denied audience as it has acted in contempt of the order made on the 7th May 2020 by instructing Jomuki Auctioneers to levy distress for rent and have proclaimed her property vide proclamation dated 20th June 2020 marked ‘A’.
13. The matter came up for hearing on 31st May 2021 when only the Tenant’s counsel appeared and sought for a dismissal of the application dated 27th May 2020 with costs. I reserved the matter for ruling.
14. I have considered the application and have come to the following findings:-i.The agent was duly appointed to manage the suit property inter-alia vide the superior court’S orders made on 10th February 2020 in Nairobi HCCC No. E148 OF 2019 which has not been set aside or challenged.ii.The said order is binding on this Tribunal coming from a superior court and ought to be enforced.iii.Although the Tenant claims to have received two separate demands from the landlord on one hand and the agent on the other hand, no evidence has been tendered in respect of the alleged demand by the landlord.iv.The Tenant has not disputed knowledge of the court order issued by the superior court to warrant refusal to pay rent to the 2nd Respondent/Agent.v.The agent is duty bound to respect the arrangement entered into between the Tenant and the landlord on one hand and the Tenant and subtenants on the hand and is only entitled to rent payable by the Tenant and not the subtenants brought into the premises by her.vi.Despite being aware of the High Court order aforesaid, the Tenant failed to disclose it to this Tribunal in line with the legal duty of disclosure at the ex-parte stage (see the case of Gabriel Kariuki Gitonga & 2 Others v Redken Wells Ltd & 11 Others [2021] eKLR on the said duty).vii.The agent is not entitled to compel the tenant and her subtenants to execute formal leases and must act within the dictates of Cap. 301, Laws of Kenya in managing the suit property.viii.The Tenant ought to institute contempt of court proceedings under Section 5 of the Judicature Act before the High court If she strongly feels that the Agent is guilty of contempt of court as this Tribunal has no jurisdiction to punish for contempt under Section 12(2) of Cap. 301, Laws of Kenya.
15. In the premises and in view of the foregoing findings, I make the following orders:-a.The order given on May 7, 2020 in this matter is hereby set aside and varied in the terms set out hereinafter.b.The rent payable by the Tenant in respect of the demised premises shall be remitted to the 2nd Respondent/Agent as and when the same falls due and payable with effect from March 2020. c.The Agent/2nd Respondent shall not be entitled to collect rent directly from the Tenant’s subtenants in the pendency of these proceedings.d.The Agent/2nd Respondent shall not compel the Tenant and sub-tenants into signing formal leases in respect of the controlled tenancy.e.The costs of this application shall abide the main reference.It is so ordered.
RULING SIGNED, DATED & VIRTUALLY DEVELIVERED THIS 13TH DAY OF AUGUST 2021 VIRTUALLY.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:-Mugambi for the TenantNo appearance for the Landlord/RespondentsFurther order: Mention of the matter for directions on the Reference on 10/9/2021. Mention notice to issue.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL13/8/2021