[2022] KEBPRT 118 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E020 OF 2021 (NAIROBI)

MARY WANJIKU NJUGUNA............................TENANT/APPLICANT

VERSUS

KEZIAH NJANGO KIRIKA.......................LANDLORD/RESPONDENT

RULING

1. The Tenant’s/Applicant’s application dated 19th April 2021 seeks the following orders;

a. Spent.

b. That the Tribunal declares the tenancy as controlled.

c. That the Landlady/Respondent be temporarily prohibited and restrained from unlawfully interfering with the Tenant’s use and occupation of the premises pending the hearing and determination of the application and the reference filed herein.

d. That the Landlady/Respondent be compelled to clear the debris and stones illegally deposited at the business premises.

e. That the Landlady/Respondent be compelled to accept rent at the set rate of Kshs 5,000/- per month pending the hearing and determination of this case or in the alternative, the Tenant to be allowed to pay the said rent to the Tribunal.

f. That the Landlady be temporarily prohibited from unlawfully evicting the Tenant pending the hearing of the reference filed herein.

g. Costs.

2. The application is supported by the affidavit of Mary Wanjiku Njuguna which I summarize as follows;

a. That the Applicant is a Tenant of the Respondent since October 2020 paying a monthly rent of Kshs 5,000/-.

b. That the Tenant has no rent arrears.

c. That the Tenant has a written lease over the suit premises which falls within the realm of a controlled tenancy.

d. That the Landlady has communicated her intention to evict the Tenant in writing.

e. That the Landlady has deposited stones and sand at the suit premises making the Tenant’s work impossible and the Tenant has lost stock worth Kshs 50,000/-.

f. That the actions of the Landlady are meant to coerce the Tenant to leave the suit premises unlawfully.

3. The application is opposed. The Landlady has filed a replying affidavit sworn on 21st May 2021 and I summarize it as follows;

a. That she is the registered owner of the suit property known as Ruiru East/Block/1/T.736.

b. That the Landlady does not recognize the Applicant as her Tenant, there being no lease agreement between the parties.

c. That the Landlady only knows one Joseph Sepere who is the husband of the Applicant and the Respondent’s Tenant.

d. That the lease agreement exhibited in the Applicant’s affidavit as “MWN 2” is a forgery.

e. That the Applicant has used forged documents to obtain court orders.

f. That the Respondent has in place a lease agreement with one Mr Joseph Sepere and she only deals with the said Mr Joseph Sepere on all matters relating to the suit property.

g. That even the letter marked as annexture MWN 3 in the Applicant’s affidavit is addressed to one Joseph Sepere and not to the Applicant.

4. The Applicant’s submissions in support of her application may be summarized as follows;

a. That as per the Act, it is clear that the Applicant is termed as a Tenant and there was a tenancy agreement established between the Applicant and the Tenant.

b. That the Applicant’s agreement annexed to her affidavit as MWN 2 is authentic and it is upon the Respondent to prove that the same is not authentic.

c. That the lease produced by the Respondent is not properly executed and attested.

d. That the Respondent has not issued the Applicants with a termination notice under section 4 of Cap 301.

e. That the Respondent has by depositing stones and sand in the suit premises interfered with the Applicant’s quiet possession of the premises.

f. That failure to follow the procedure resulted in the destruction of the Applicant’s stock leading to losses.

5. The Landlord’s submissions may also be summarized as follows;

a. That there is no Landlord/Tenant relationship between the Applicant and the Respondent.

b. The lease agreement dated 12th October 2020 is signed by the Respondent and Joseph Sepere and also signed by the Landlord’s caretaker one Samson Kariuki. It is a valid and binding legal document.

c. That the Landlord has not executed the lease agreement exhibited by the Applicant in her affidavit.

d. That the Tenant has not demonstrated that she has paid rent at all to the Respondent. The mpesa statements exhibited belong to Joseph Sepere and not the Applicant.

e. That the Tribunal has no jurisdiction to hear and determine this matter as there is no Landlord/Tenant relationship between the parties and consequently the Respondent cannot be said to be in breach of a non-existent contract and the claimed damages are non-existent.

f. That the tenancy alluded to by the Tenant/Applicant is for an indefinite period and cannot therefore be deemed to be a controlled tenancy.

g. That by his letter of 10th April 2021, the Landlord has already accepted Joseph Sepere’s notice to vacate the leased premises.

6. The issues that arise for determination in this application, in my humble view are the following;

a. Whether there exists a Landlord/Tenant relationship between the parties herein and therefore whether the court has jurisdiction to hear and determine this dispute.

b. Whether the Applicant is entitled to the orders sought in the application dated 19th April 2021.

7. On issue (a) and (b)

a. In her attempt to prove the existence of a tenancy agreement between herself and the Respondent, the Applicant has as exhibit MWN – 2. A copy of a lease agreement. The document annexed as the lease bears the name of Mary Wanjiku (Sepere’s wife) as the Tenant, Joseph Sepere as the Tenant’s next of kin, Kezia as the plot owner and Samson Kamau Kariuki as the plot owner caretaker.

b. The Respondent has termed the lease agreement MWN 2 a forgery and has denied the signatures therein to be hers. The Respondent’s position is that the said lease is a forged document. The Respondent has annexed his own lease with one Joseph Pere which is the lease she recognizes. In the Respondent’s lease, the Applicant has allegedly appended her signature as a witness. The Respondent has stated that indeed the rent for the suit premises has always been paid by the said Joseph Pere.

c. I have gone through the pleadings and I have not seen any evidence that indeed the Tenant/Applicant has paid any rent to the Respondent. But the Tenant/Applicant has stated at paragraph 5 of her supplementary affidavit as follows;

“That the Respondent has all along treated me as a Tenant despite receiving rent payments from my husband.”

d. The position seems to be supported by the Respondent herself who states at paragraph 7 of the replying affidavit;

“That indeed I only deal with the said Mr Sepere in all matters relating to the suit property and even the rent payments are received from Mr Sepere. The mpesa statement attached to the Applicant’s supporting affidavit as annexture MWN – 1 can confirm as much.”

There is only one suit premises in this dispute and the only contest is as to whether the Applicant herein is the actual Tenant or whether Joseph Pere is the actual Tenant of the Respondent. None of the parties herein sought to have an affidavit sworn by Joseph Pere to tilt the scales in their favour.

e. What is clear is that the Applicant is in the suit premises, the Respondent has not denied this. The Applicant has stated in her affidavit that she has been carrying out a hardware business upon the suit premises since October 2020. The Respondent’s response to this is that she only knew the Applicant as the wife of one Joseph Pere who was the actual Tenant of the Respondent. I do not see a clear rebuttal of the averment by the Tenant that she has been on the premises since October 2020 and carrying on business.

f. The Tribunal is also faced with two alleged lease agreements. It is not possible at this stage of the proceedings to state conclusively which of the two lease agreements is a forgery and which one is authentic. These are matters that can only be determined during the hearing of the reference. The role of one Joseph Pere who is not a party in these proceedings and who seems to hold the key to this “confused” state of affairs can only be ascertained during the full hearing of the reference/complaint.

g. In view of the rival lease agreements presented by the parties, I will leave the issue of who between the Applicant and Joseph Pere is the actual Respondent’s Tenant to the full hearing of the reference.

h. I have stated earlier on that the Applicant’s possession of the suit premises has not been denied by the Respondent. On the strength of the said possession and in view of my other observations above, it is only fair that the current status of the suit premises is preserved pending the hearing of the reference.

i. Consequently, I make the following orders;

a. That the Landlady is hereby restrained from unlawfully interfering with the Tenant’s use and occupation of the suit premises pending the hearing and determination of the reference.

b. That the Tenant shall continue paying rent at the rate of Kshs 5,000/-per month.

c. That the Tenant will be at liberty to deposit the said rent at the Tribunal if the Landlord declines to receive the same.

d. That each party shall bear its own costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this26thday ofJanuary 2022in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL