[2021] KEBPRT 355 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 12 OF 2021 (MOMBASA)

MAURICE CHARLES OTUNGA (Suing on Behalf of Francisca Mukami (Deceased))

T/A FRABEM CATERERS ………………………….........……TENANT/ APPLICANT

AND

HAMISI ATHAMAN MOHAMED (Sued as Hamisi C/O

ATHAMAN M. MOHAMED’S FAMILY) ………...……RESPONDENT/LANDLORD

RULING

PARTIES AND THEIR REPRESENTATIVE

1. The Tenant/ Applicant, Francisca Mukami suing through Maurice Charles Otunga, rented space on land Title Number KWALE/UKUNDA/647 for the business (herein after referred to as the ‘Tenant’)

2. The Tenant represents himself in this reference.

3. The Respondent Hamisi Athaman Mohamed is sued in his capacity as a guardian of the family of Athaman M. Mohamed, who is the landlord of the suit premises on land Title Number KWALE/UKUNDA/647(herein after referred to as the ‘Landlord’).

4. Learned Counsel Stephen Oddiaga & Company Advocates represents the Respondent. info@oddiagaadvocates.com

THE DISPUTE BACKGROUND

5. The dispute arises out of the tenancy relationship between the parties over property land Title Number KWALE/UKUNDA/647. It is based on the lease agreement dated 31st August, 2018, for a term of 5 years and 3 months from the 1st day of November 2017.

6. On 12th January, 2019 the tenant moved this tribunal by way of a reference dated 12th January 2021 and a Notice of Motion under certificate filed on 12th January 2021 under Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, seeking that:

a. The Tribunal orders the Respondent to open the locked up premises or in the alternative order that the Tenant be allowed to break open the premises through supervision of the area elder.

b. The Tribunal do issue a restraining injunction against the Respondent, his servants, agents or employees to refrain from harassing, threatening, intimidating, evicting or interfering with the quiet possession of the Tenant over the suit premises.

c. The Tribunal orders that the notice issued by the Respondent be declared void.

d. The Tenant be allowed to pay January 2021 rent pending hearing and determination of the Reference.

e. The Tribunal orders the OCS Ukunda Police station to ensure enforcement of orders issued by the Tribunal.

f. Costs of the application be in the cause.

7. The Respondent filed a Preliminary Objection dated 20th January 2021 contesting that the Applicant/Tenant lacks locus standi to institute the reference on behalf of the Deceased Tenant and sought that the suit be struck out.

JURISDICTION

8. The Jurisdiction of this tribunal is not in dispute.

THE TENANT’S CLAIM

9. The Tenant filed a reference dated 12th January 2021 together with a Notice of Motion Application under certificate of urgency and supporting affidavit dated 12th January 2021, these pleadings form the basis of the claim.

THE LANDLORD’S CLAIM

10. The Respondent/Landlord on the other hand have filed a Preliminary Objection dated 20th January 2021 alleging that the Applicant lacked Locus Standi to institute this Reference and annexed a Replying Affidavit dated 20th January 2021.

11. Parties filed written submission and on 9th June 2021 the matter was fixed for ruling on 16th July 2021.

12. I have had occasion to peruse the pleadings above-mentioned of both the Respondent/Landlord and Applicant/Tenant and I will not reiterate the same as they are brief and to the point.

13. I will refer to them in my analysis below where relevant and I thank parties for the same.

MATTERS NOT IN DISPUTE

14. There is no dispute that there is an existing Lease Agreement dated 31st August 2018 between Athaman Mwakuwaza Mohamed and Fransisca Mukami, the deceased.

LIST OF ISSUES FOR DETERMINATION

a) Whether the Applicant/Tenant has locus standi to institute this Reference?

b) Whether the Applicant/Tenant is entitled to injunctive orders against the Respondent?

ANALYSIS AND FINDINGS

Whether the Applicant/Tenant has Locus Standi to institute this Reference?

15. I have considered the Applicant/Tenant’s Reference and Application, the Respondent’s Replying Affidavit and the evidence before this Tribunal.

16. I note that the Respondent has raised an issue on whether the Applicant/Tenant has Locus Standi to institute this reference. This is a cardinal issue that has to be dealt with first since its outcome will determine the way forward in dealing with the remedies sought by the Applicant/Tenant.

17. In the case of IBRAHIM V HASSAN & CHARLES KIMENYI MACHARIA, INTERESTEDPARTY [2019] eKLRthe court stated that:

“Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party cannot be heard, despite whether or not he has a case worth listening. …... In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues.”

18. The Applicant has placed before this Tribunal a Lease Agreement dated 31st August 2018 between Athaman Mwakuwaza Mohamed,the Landlord, and Fransisca Mukami, the Tenant. The Respondent has not disputed the existence of the Lease Agreement.

19. In the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLRthe High Court pronounced itself as follows:

“…the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.”

20. It is trite law that for a representative to sue on behalf of the estate of a deceased person, the representative ought to obtain a Grant ad Litem from a Court of Competent Jurisdiction.

21. The Applicant vide a Supplementary Affidavit received by this Tribunal on 28th May 2021, presented a Limited Grant of Letters of Administration Ad Litem, issued to Maurice Charles Otunga, by the Chief Magistrate Court at Mombasa on 8th February, 2021 in Succession Cause E043 of 2021, In the Matter of the Estate of Francisca Mukami (Deceased)

22. In light of the above, I find that the Applicant, Maurice Charles Otunga, has the Locus Standi to institute this Reference on behalf of the deceased tenant.

Whether the Applicant/Tenant is entitled to injunctive orders against the Respondent?

23. The Applicant/Tenant has sought injunctive orders as against the Respondent as follows, that:

a. The Tribunal orders the Respondent to open the locked up premises or in the alternative order that the Tenant be allowed to break open the premises through supervision of the area elder.

b. The Tribunal issue a restraining injunction against the Respondent, his servants, agents or employees to refrain from harassing, threatening, intimidating, evicting or interfering with the quiet possession of the Tenant over the suit premises.

c. The Tribunal orders that the notice issued by the Respondent be declared void.

d. The Tenant be allowed to pay January 2021 rent pending hearing and determination of the Reference.

e. The Tribunal orders the OCS Ukunda Police station to ensure enforcement of orders issued by the Tribunal.

24. Principles of injunctions as enunciated in the case of GIELLA VERSUS CASSMAN BROWN (1973) EA 358 and as was reiterated in the case ofNguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that;

“in an interlocutory injunction application the applicant has to satisfy the triple requirements

a) establishes his case only at a prima facie level

b) demonstrates irreparable injury if a temporary injunction is not granted; and

c)ally any doubts as to b, by showing that the balance of convenience is in his favour.

These are the three pillars on which rests the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially.

25. Therefore, the Applicant/Tenant has to prove that there exists a prima facie case, irreparable injury will be occasioned if the orders sought are not granted and finally establish that the balance of convenience is in his favour.

26. The Applicant/Tenant alleges that the Respondent locked up the premises without prior notice while claiming rent arrears since December 2019. He further alleges that he had paid rent for December 2019 as per the Tenancy Agreement. The law expects the Landlord to move this tribunal under Sec 4 and 7(1)(b) of cap 301 if rent is in arrears of two months or more. This was not done.

27. Therefore, the Applicant has proved that the Tenant has a legal right which has been infringed by the Respondent/Landlord as to call for an explanation or rebuttal from the Respondent thus established a prima facie case with a probability of success.

28. On the second ground of irreparable damage, the Applicant/Tenant has stated that the business Frabems Caterers conducted at the premises is the livelihood of the family and that the income therefrom is utilized in payment of school fees for his children. Therefore, the family would suffer undue difficulties if he premises is not opened. Therefore, I find that this ground has been satisfied.

29. The third and final ground to be satisfied by the Applicant/Tenant is that the balance of convenience is in his favour. I note that the Applicant/Tenant has proved that he paid rent till December 2019 as evidenced by the receipt dated 5th December 2019. The Respondent/Landlord alleges that the Applicant/Tenant owes arrears amounting to KShs 570,000 as at the end of November 2020. The Applicant/Tenant does not deny being in arrears but instead seeking an order that be allowed to pay rent pending hearing and determination of the Reference.

For the reasons given above I find that the applicant has locus standi to institute this case and that No notice having been served upon the tenant by the landlord the actions of the landlord were as such illegal and cannot stand in law. However, the issue of nonpayment of rent is of great concern to this tribunal as the landlord needs a return on its investment as such I proceed to make the following orders;

I ORDER that:

a) The Respondent/Landlord does upon the locked premises if still closed and allow the Applicant/Tenant quite possession of the same pending hearing of the Reference.

b) The Respondent, his servants, agents or employees are hereby restrained against harassing, threatening, intimidating, evicting or interfering with the quiet possession of the Tenant over the suit premises.

c) The OCS Ukunda Police to maintain peace.

d) The Tenant to ensure monthly rent as agreed earlier is paid without default going forward and incase of any default exceeding 2 months the Landlord is free to distress for rent and evict the tenant without any further reference to this tribunal.

e) The parties to file statement of accounts of rent arrears and payment proposals within the next 30 days and hearing of the reference to make a determination on the same be set down within 90 days failure to which the injunctive reliefs in prayers a,b and c will lapse and the Landlord will be free to evict the tenant.

f) Each party to bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Rulingdated, signed and delivered virtually by Hon A. Muma this 30th day of July 2021in the presence ofMwainzifor theLandlordand in the absence ofMaurice Charles (Tenant).

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL