[2022] KEBPRT 825 (KLR)

Muriithi & another v Nderitu; Kaburi & another (Interested Parties) (Tribunal Case E002 of 2022) [2022] KEBPRT 825 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 825 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E002 of 2022

Andrew Muma, Vice Chair

November 11, 2022

Between

Karen Wawira Muriithi

1st Applicant

Edith Gaturi Kanambiu

2nd Applicant

and

Samuel Nderitu

Respondent

and

Faith Wanjira K. Kaburi

Interested Party

Tom Munene Kanambiu

Interested Party

Ruling

A. Parties and their Representative 1. The 1st & 2nd applicants/Landlords have been Landlords of the Respondent in Bus Park Stores No. 71 A & B in Embu Town. (Hereinafter referred to as the “Applicants”)

2. The tenant/respondent, has been a Tenant in the Bus Park Stores No. 71 A & B in Embu Town. (Hereinafter referred to as the “Tenant”)

3. The interested parties through a Certificate of Confirmation of a Grant were granted joint ownership of Bus Park Stores No. 71 in Embu Town on January 25, 2021.

B. The Dispute Background 4. On January 11, 2022, the Landlord filed a Reference and an Application to the Tribunal on the ground that the Tenant has failed to pay rent for seven (7) months totaling to Kshs. 140,000.

5. The tribunal gave orders for the Application dated January 11, 2022, stating that the Tenant should deposit Kshs. 40,000 to the tribunal on January 28, 2022.

6. A subsequent order was issued on March 23, 2022 directing the Tenant to pay monthly rent of Kshs. 20,000 to the Tribunal pending the High Court Decision (Embu High Court Misc. No. Eo48 of 2021).

7. In response to the Application dated January 11, 2022, the Tenant through a replying affidavit dated February 7, 2022, stated that he had stopped paying rent to the applicants upon receiving a letter from the advocate of the Interested parties dated May 19, 2021 stating that he should start paying rent to the interested party as from the month of June 2022 and attached therein, was a certificate of confirmation of grant dated January 25, 2021 indicating that Faith Wanjira Kaburi had become the owner of the Bus Park No. 71 vide Embu Succession cause No. 301 of 2017.

8. The Tenant has since been paying rent to the 1st interested party through the Bank account as directed in the letter dated May 19, 2021.

9. The Interested Parties through an Application dated April 13, 2022 requested sought leave to be joined as interested parties to the proceedings before the Tribunal as they were the rightful owners of the Bus Park No. 71 as evidenced by the certificate of confirmation of grant vide Embu Succession cause No. 301 of 2017.

10. The interested parties’ Application was allowed vide an order delivered on April 21, 2022.

11. The applicants filed an application dated October 28, 2022, requesting the Tribunal to hold that the Appeal they had filed (Embu High Court Misc. No. Eo48 of 2021) to act as stay of execution of the certificate of confirmation of grant pending the hearing of the Application of stay of execution of the grant at the Chief Magistrate Court in CM SUCC. NO. 301 of 2017.

C. Claim and Defence 12. The Landlord has been receiving rent till May 2021; however, she stopped receiving rent after the Interested Party was granted ownership by a certificate of confirmation of grant and thereafter, directed the Tenant to start paying rent to her.

13. The Landlord claims that they have appealed against the certificate of confirmation of grant and request the Tribunal to hold the appeal as a stay of execution pending and application of stay of execution to be heard on November 16, 2022.

14. The Interested parties claim that they should continue receiving rent as they are the rightful owners of Bus Park No. 71 evidence by the confirmation of grant issued by the court.

D. List of issues for Determination 15. The Parties raised certain issues for determination and the Tribunal shall proceed to distill the issues discussed by the Parties and their Counsels who submitted in writing as below:a.Whether the Tenant should pay rent to the applicants or the Interested parties.

E. Analysis and findingsWhether the Tenant should pay rent to the Applicants or the Interested parties. 16. Having greatly analyzed the issues raised by all the parties, the tribunal duly acknowledges that there is a pending hearing of the applicants’ Application dated October 21, 2022 for stay of execution of grant on November 16, 2022 at the Magistrates Court.

17. However, the Tribunal is alive to the fact that the Interested Parties are the rightful owners of the Bus Park No. 71 as per the Certificate of confirmation of grant issued pursuant to section 71(1) and (3) of the Law of Succession Act.

18. Therefore, the tribunal recognizing that it does not have jurisdiction to determine a legal owner of a property pursuant to its powers under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishment)Act cap 301, is left with no choice but to order that rent be paid to the owner as per the status quo established by the court in CM SUCC. NO. 301 of 2017.

19. There being no order of stay on the said confirmed grant and an appeal cannot act as a stay. The application to stay my ruling pending hearing of the application of stay before another forum is unheard of in law parties ought to move to stay both the grants and proceedings herein in the right forum.

ORDER 20. For the reason given above I order as follows that;a.The Reference and Application dated January 11, 2022 are dismissed.b.The Tenant to pay rent of Kshs. 20,000 to the interested parties as and when it falls dues.c.The interested party to collect the rent that the Tenant has been paying to the Tribunal.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A. Muma this 11th day of November 2022 I the presence of Edith Gaturi Kanambiu Applicant Landlord in Person and Tom Kanambiu 2nd Interested Party in Person and Samuel Nderitu Tenant Respondent in person.HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL