[2024] KEBPRT 84 (KLR)

Kuria & another (As administrators of the Estate of Mary Wanjiru Kuria) v Kamau & 2 others (Tribunal Case E432 of 2023) [2024] KEBPRT 84 (KLR) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 84 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E432 of 2023

Gakuhi Chege, Chair & J Osodo, Member

February 2, 2024

Between

Winnie Wairimu Kuria

1st Applicant

Fred Kamau Kuria

2nd Applicant

As administrators of the Estate of Mary Wanjiru Kuria

and

Suleiman Kamau

1st Respondent

Shadrack Otieno

2nd Respondent

Wilfred Joshua

3rd Respondent

Ruling

1. The Applicants herein moved this Tribunal by way of a reference/complaint dated 24th April 2023 under Section 12(4) of Cap. 301, Laws of Kenya claiming that the tenants had failed to pay rent and requiring them to give vacant possession after notices to terminate their tenancies expired.

2. The Applicants also filed a notice of motion application of even date seeking for orders:-i.That the application be certified as urgent and service thereof be dispensed with in the first instance.ii.That the Respondents/Tenants be ordered to hand over vacant possession of the suit premises being plot no B222, Ongata Rongai to the applicant/landlord.iii.That the order for vacant possession be executed by an appointed Auctioneer through the supervision of the OCS Ongata Rongai Police Station.iv.That the Landlord be allowed to sell any distrainable goods found thereon to recover rent arears through an appointed Auctioneer.v.That costs of the case be provided for;

3. The application is supported by the affidavit of Winnie Wairimu Kuria and the following grounds; -a.That the landlord served the Tenants with the notice to terminate their tenancy dated 25th January 2023 under Cap 301, Laws of Kenya.b.That the Tenants did not file a reference against termination of their tenancy.c.That this tribunal confirmed that the tenants had not complied with the terms of the notice.d.That the Respondents/tenants continued to enjoy occupation of the premises without paying rent amounting to ksh 720,000 thus constituting trespass.

4. Through her affidavit sworn on 24th April 2023, the 1st Applicant deposes that she is one of the Administrators of the estate of Mary Wanjiru Kuria (deceased) and that the Respondents herein are their Tenants in the suit premises on plot no B222 Ongata Rongai.

5. On 25th January 2023, the Applicants issued a termination notice to the Tenants which was expressed to take effect on 1st April 2023 on the ground that the Tenants had failed to pay rent despite the confirmation of grant in Nairobi H.C Succession Cause no 1574 of 1992 attached to the supporting affidavit and marked WW1.

6. The termination notices were served on 25th January 2023 by a private process server in terms of the affidavit of service marked WW2.

7. According to the Applicants, the Tenants never filed any reference against the notices as required by law but continued to remain in the premises without any justifiable reason despite the notice having taken effect on 1st April 2023 and neither did they pay the rent arrears which had accumulated to ksh 720,000 as at 24th April 2023 and which continued to accumulate.

8. The Applicants had made all effort to have the Tenants give vacant possession or pay rent with no avail hence necessitating the filing of the application since the Tenants had failed to vacate or pay rent as ordered in BPRT no E1191of 2022 as required by the Law and which rent continued to accumulate. The Applicants have attached copies of proclamation notices, order issued in BPRT no E1191 of 2022 and Bank statement from Unaitas Bank marked WW3.

9. The 1st Respondent filed a replying affidavit sworn on 23rd October 2023 denying that notice of termination or any other court document for that matter was issued upon him or the 3rd Respondent on 25th January 2023 as alluded by the Applicants and as such there was never need for them to file any Reference.

10. He further deposes that the deceased herein was never their Landlord nor owner of the property on Plot no B222 Ongata Rongai and as such, the Applicants have no right to collect any rent from the said property.

11. It is the 1st Respondent’s contention that he and the 3rd Respondent had a tenancy agreement with one Simon Kuria Kamau (now deceased) and that they have been paying rent to the account provided in the tenancy agreement. The property herein was subject matter in Milimani Succession Cause no 1574 of 1992 where the court established that the same was held in common by the deceased in this suit and Simon Kamau Kuria who were spouses to each other and parents of the Applicants herein.

12. The property was divided into two equal portions whereby half was allotted to the Applicants and the other half was allotted to Simon Kuria Kamau and in the year 1993, Simon Kuria Kamau married one Lucy Njoki and they built their matrimonial home on Plot no B222. They also built rental houses and business premises on the said property.

13. The 1st Respondent deposes that upon the demise of Simon Kuria Kamau in 2020, the “Plaintiffs” proceeded to court and amended the grant in Milimani Succession Cause no 1574 of 1992 without disclosing to the court that the estate had already been administered and that Simon Kuria Kamau had a surviving spouse and two children who still resided on the property. There is an ongoing Succession Cause number 26 of 2020 in Kajiado in regards to the administration of the estate of Simon Kuria Kamau which includes Plot no B222, where the Applicants herein are the objectors.

14. The 1st Respondent contends that they learnt of existence of the present suit after being served with an order by the Applicants who came with the OCS Rongai Police Station to evict them in June. Their properties and stock were taken away and service of the court order dated 12th May 2023 together with the eviction notice was effected on Friday 9th June 2023 which was the same day that the Applicants were undertaking the eviction.

15. As a result, the Applicants’ unjust acts had caused the Respondents loss of their tools of business, stock and some of their business machinery were destroyed.

16. It is on the foregoing basis that the Respondents contend that the Applicants have no rightful possession of the property and that they have been faithfully paying their rent. They are therefore seeking for dismissal of the application.

17. The Respondents simultaneously filed a notice of preliminary objection dated 24th October 2023 which sets out the following grounds of objection-i.This Honorable tribunal lacks jurisdiction as there is no landlord/tenant relationship between the Claimants and the 1st and 3rd Respondents.ii.The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides under Section 2 that a Landlord is a person that is entitled to rents payable at the premises and hence the Claimants lacked locus standi as they are not the landlords.iii.Neither the Claimants nor the deceased, Mary Wanjiru Kuria, are the registered owners or proprietors of the premises on plot no B222, on which the 1st and 3rd Respondents reside as lawful tenants.iv.The 1st and 3rd Respondents have fully paid their rent to date and hence the claim in this court is spent.v.Section 12 of the Act has not given this honorable tribunal power to conduct succession proceedings or determine ownership of property, which is the contention in this suit.vi.The Claimant's suit is incompetent, bad in law, a non-starter and an abuse of the Court process and should be dismissed with costs to the 1st and 3rd Respondents.

18. Directions were given to the effect that the matter proceeds by way of written submissions. However, only the 1st and 3rd Respondents’ counsel complied. We shall consider the submissions together with the issues for determination.

19. The following issues arise for determination in this case-a.Whether there is a landlord/tenant relationship between the Applicants and the 1st Respondent.b.Whether this tribunal has jurisdiction to entertain the instant dispute.c.Whether the orders sought in the Applicants’ reference and application dated 24th April 2023 ought to be granted or denied.d.Who is liable to pay costs?

20. It is the 1st and 3rd Respondents' position that neither the Applicants herein nor the deceased one Mary Wanjiru Kuria have ever been their landlords. The Respondents herein contend that they entered into a tenancy agreement with one Simon Kuria Kamau and are strangers to the Applicants.

21. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act under Section 2 provides that a Landlord is a person who is entitled to rents or profits of the premises payable under the terms of the tenancy. The Respondents contend that they have been paying rent to the account provided in the tenancy agreement signed with one Simon Kuria (now deceased) as indicated in Annexure WJ-1 in the Respondents’ application dated 14th June 2023 and not to the Applicants herein. They therefore contend that there being no tenancy relationship between the parties herein, this tribunal has no jurisdiction to entertain the instant case.

22. The Respondents rely on the locus classicus case of Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd (1989) eKLR where it was held that-“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.”

23. They also cite the case of Republic v Chairperson, Business Premises Rent Tribunal at Nairobi & Another ex-parte Suraj Housing & Properties Limited & 2 others(2016) eKLR in which the court cited with approval the decision in Pritam v Ratilal andanother (1972) EA 560 as follows:-‘“Therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or has been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal, otherwise, the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the tribunal has no jurisdiction.”

24. The Applicants did not file a supplementary affidavit to demonstrate the existence of a landlord/tenant relationship between them and the Respondents despite being served with the replying affidavit. They did not also deny that the dispute over the estate of the late Simon Kuria Kamau (deceased) is under litigation in Kajiado Succession cause no 26 of 2020. We find and hold that that is the correct forum to determine the issue as to who is entitled to the rental income and control of the suit premises herein as this tribunal has no jurisdiction to deal with Probate and Administration matters.

25. As such, the preliminary objection raised by the Respondents on the question of jurisdiction succeeds and we proceed to down our tools to enable the Applicants litigate their claim in the appropriate forum.

26. In the premises, we find and hold that the Applicants are not entitled to the reliefs sought in the Reference and application dated 24th April 2023 in view of the ongoing Probate and Administration proceedings in the Kajiado Court.

27. As regards costs, the same are in this tribunal’s discretion under Section 12(1)(k) Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. We have no reason to deny costs to the 1st and 3rd Respondents.

28. In conclusion, the following final orders commend to us in this matter: -i.The Applicants’ reference and application dated 24th April 2023 are hereby struck out for want of jurisdiction in view of the pendency of Kajiado Succession Cause no 26 of 2020. ii.The Applicants will pay costs of ksh 30,000/= to the 1st and 3rd Respondents in this case.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 2nd DAY OF February 2024. HON. GAKUHI CHEGE - CHAIRPERSONHON. JOYCE OSODO - MEMBERIn the presence of:- Miss Njeru holding brief for miss Kariuki for 1st and 3rd tenants and Maranga for the Landlords:-