[2021] KEBPRT 353 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 579 OF 2011 (NAIROBI)

MARGARET MBATHA MUTUNGI

(being an Administrator of the Estate

of the late MAINA KOINE...................LANDLORD

VERSUS

JOHN MACHARIA.....................................TENANT

RULING

1. By a motion dated 2nd April 2019, the Applicant who is the administrator of the estate of late Maina Koine moved this Tribunal seeking assessment of the amount payable and outstanding rent and interest in terms of the order of 12th July 2013.

2. She further seeks that upon assessment, the file be transmitted to Milimani Commercial Courts for execution.

3. The application is supported by the affidavit of the Applicant sworn on 2nd April 2019 to which is annexed a Limited grant ad litem in respect of the deceased Landlord’s estate and proceedings in this case conducted between 2nd September 2011 and 12th September 2012.

4. On 12th September 2012, this Tribunal issued an order of status quo thereby extending the orders issued on 30th July 2021 pending the outcome of Milimani case no. 4379/2021.

5. On 13th July 2021, the Landlord was granted leave to levy distress to recover outstanding rent arrears as a result of which the Tenant moved to Milimani Commercial Courts vide Civil case no. 4379/2012 and obtained stay orders in respect of the raid recovery.

6. The Tenant/Defendant was ordered in the said case to deposit Kshs.260,000/- and Kshs.10,000/- per month in an interest earning account in the joint names of their respective advocates.

7. It is the Applicant’s case that after depositing the initial Kshs.260,000/- the Tenant failed/defaulted in making payments from 2013 to date and as a result the Milimani court vacated the orders of 28th January 2013 in terms of annexture MMM3.

8. On 23rd April, 2019 the Respondent filed a replying affidavit sworn on 17th April 2019 opposing the said application as being incompetent, misplaced and a gross abuse of the honorable court’s process.

9. It is the Tenant’s case that the court lacks jurisdiction to entertain the matter being the subject matter of Milimani Civil Suit no. 4379 of 2012 and on account of having stayed proceedings pending determination of the said case.

10. It is further deposed that this tribunal has not varied, reviewed or set aside the order issued on 12th September 2012 and that the Landlord ought to abide with the same as the Milimani civil no. 4379 of 2012 is still ongoing.

11. As such, the Respondent argues that until the Chief Magistrate’s court renders its judgment, the Tribunal has no jurisdiction to hear any party on merit.

12. The Respondent contends that the prayer for rent assessment runs contrary to the orders of 12th April 2013 in which Hon. P. W. Wasike, Resident Magistrate directed parties to comply with the 4th limb of the decree dated 26th November 2013 within 30 days and in default, the sums ordered be deposited in court to avoid further delay.

13. It is therefore the Respondent’s case that it is only the Chief Magistrate’s court that can make any further orders with regard to payment and reassessment of rent since that is where rent is being deposited and not this Tribunal.

14. On 12th March 2020, the Respondent filed a supplementary affidavit introducing new matters which are not borne out of the Tribunal’s record.

15. I have checked the Tribunal record and I have not seen the documents annexed to the supplementary affidavit neither have I seen the order granting leave to file the same.

16. The Respondent further filed a notice of preliminary objection dated 3rd February 2021 stating that he was no longer a tenant and that this Tribunal has no jurisdiction to adjudicate the matter wherein the Landlord-Tenant relationship has already been terminated in view of an affidavit sworn by Margaret Mbatha Mutungi on 10th August 2018 in Milimani CMCC No. 4379 of 2012 at paragraphs 8,9 & 10 confirming that the tenant was no longer in possession. A copy of the said affidavit is unprocedurally attached to the preliminary objection.

17. I have keenly looked at the proceedings and the pleadings filed herein and I am of the considered view that the court record is incomplete and the following documents which are alluded to in affidavits and submissions appear to be missing:-

(a) The valuation report by Paragon Property Valuers Ltd dated 5th March 2012 annexed to the Respondent’s supplementary affidavit.

(b) Notice of preliminary objection dated 12th April 2012.

(c) Application dated 27th July 2021.

(d) Landlord’s Reference and application dated 2nd September 2011.

(e) Copies of pleadings in respect of the Milimani Commercial court case no. 4379 of 2012.

(f) Both parties tabulations of the amount owing in rent arrears.

18. In the premises, I cannot do substantive justice to the parties herein without conducting a full hearing and all the said documents being filed herein.

19. I therefore direct as follows:-

(a) The parties to file bundles of the missing documents together with their witnesses statements and statements of rent account for the relevant period with a sum of Kshs.10,000/- per month being the monthly rent as ordered earlier by this Tribunal.

(b) The matter shall be fixed for hearing on priority basis by way of viva voce evidence.

(c) All the issues raised in the pending applications shall be subsumed in the main Reference.

(d) Costs shall abide the outcome of the main reference.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 19TH DAY OF AUGUST 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Mr. Ayola for the Landlord/administrator

Mr. Karwanda for the Tenant

Further order:

hearing of the main Reference on 7/10/2021 at 12. 00 noon.

Parties to comply within 14 days hereof with the above directions.