[2021] KEBPRT 108 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E195 OF 2021

MUSTAFA ABDULLAHI OMAR T/A

M.DALMAR TRADING COMPANY LIMITED.......................................................TENANT

VERSUS

JEANETTE WANJIRU GATEHI.................................................................1st RESPONDENT

HENRY NDUNGU KIMEMIA....................................................................2nd RESPONDENT

RULING/JUDGEMENT

Parties and their Representatives

1. Hassan N. Lakicha & Co. Advocates represent the Tenant.

2. M.K Mwangi & company Advocates represent the Landlords.

The Dispute Background

3. The tenant on 9th June 2021 moved this honourable court by way of Reference and notice of motion seeking among other orders that:

a) The Respondents, their employees or authorized agents, Auctioneers and or employees, building manager, be restrained forthwith by the Honourable Tribunal from interfering, taking possession of the tenants Business on LR No. 36/VII/435, Eeastleigh, Nairobi from intimidating, harassing, evicting, distressing for rent, locki0ng up and/or in any other manner interfering with the tenant’s/applicant’s quiet possession and enjoyment of his business On the suit premise until final determination of the complaint.

b) That the honourable Tribunal be pleased to grant ex-parte orders in view of the above prayer pending inter-partes hearing of this application

c) That the Officer Commanding Station (OCS) Pangani Police Station do assist to enforce, supervise, ensure peace prevails and ensure compliance with the orders issued by the Tribunal for purposes of maintaining law and order.

d) That costs be borne by the landlords.

The tenants obtained orders dated 11th June 2021 which orders granted prayers 2 & 3 restraining the respondents, their servants, employees or authorized agents, auctioneers and/or employees from interfering or taking possession of the suit premise, intimidating, harassing, evicting or distressing for rent and interfering with full enjoyment of the suit premise by the tenant; and, that the OCS assist to ensure compliance.

Tenant’s Case

4. The Tenant contends that his relationship with the Landlord in respect of the suit property culminates into controlled tenancy pursuant to Cap 301 of the Laws of Kenya.

5. That he has diligently and without default been paying monthly premium of KShs 30,000 annually as such, hitherto, is not in any arrears whatsoever in respect to the suit property.

6. It is his deponent that, after the demise of John Kimemia Ndungu, he continued paying rent to the owner of the property, being Mary Wambui, thus has no arrears to the effect.

7. He deponed that the Landlords unlawfully and without color of right issued them a notice demanding for rent vide their letter dated 28th May, 2021. That they also expressed threats to levy distress for rent despite the tenants having duly complied with the monthly premiums.

8. It is the tenant’s case that, vide the letter dated 4th June, 2021 from L.G Kimani & Advocates, Mary Wambui Gakibe, confirmed to have been timeously receiving rent since the demise of her son and assures to proceed with rent collection. In the letter, the Tenant is further advised by the owner of the suit property to continue paying monthly rent.

9. Further, the Tenant deponed having been verily informed by the owner of the suit property that, the grant of letters of administration of the estate of the deceased, was secretly done without the involvement of the owner of the suit property, thus, the said grant does not confer the respondents with any rights to the suit property.

10. In his supplementary affidavit dated 23rd September 2021, the tenant states the annexed sub-lease does not speak the ownership of the suit property and as such cannot be used against the tenant to mean he knew the suit premise belonged to the deceased.

11. He strongly deponed that it is less than candid for the Landlords to state that the said Mary Wambui Gakibe is a stranger, that the correct position is that he has been dealing with the deceased and the said Mary Wambui simultaneously. That the deceased was her son who would collect rent on her behalf.

12. He deponed identifying the core issue to be a dispute between the said Mary Wambui Gakibe and her grandchildren in respect to the suit property on who is the rightful owner of the said property. And that the foregoing issue is beyond the reach of the jurisdiction of this court.

The Landlords’ Case

13. They deponed that, the City Council of Nairobi gave the necessary approvals to the deceased landlord while constructing the property, which arrangement is well in the knowledge of the tenant, as the suit property was renovated when the Tenant was still in the occupation and that the said renovation was facilitated by the money paid by the tenant to the deceased Landlord.

14. They contend that the tenant has always been aware that the property belonged to the deceased Landlord and not his mother and as such the allegations that he paid rent to the deceased mother does not absolve him from the responsibility of honoring the payment of the rent to the suit premise.

15. That the tenant was well aware of the conduct of the lease agreement provided for the payment of rent to the Landlord and in the event the Landlord was deceased to his personal representatives and he cannot then seek to defeat the estate’s claim to the rent due since the demise of the suit premise.

16. They contend that the tenant is misleading this court that he has no arrears as it is manifesting from his admission in paragraph 4 of the replying affidavit that he has been paying rent to a stranger and not the estate of the deceased as he was supposed to, thus, merits the notice issued to him by the Landlords.

17. It is their case that the Landlords admitted that they are appointed administrators of the estate of the deceased Landlord and any attempts to water down the same is not supported by any evidence. They state in their replying affidavit that the said appointment has since not been challenged by anyone including the said Mary Wambui, who is their grandmother.

18. They deponed that, the conduct of the said Mary Wambui, seeking rent from the tenant does not exempt the latter to honor his obligations prescribed by the lease agreement but makes the former an intermeddler in the estate of the deceased former Landlord.

19. The Landlords contend that the impugned letters of administration were issued by the high court of Kenya at Nairobi on 18th February 2021.

20. They stated in their replying affidavit that, despite the notice to the tenant requesting him to pay rent, the tenant has refused to pay rent prompting the landlords to levy distress for rent.

Jurisdiction

21. There is no dispute as to the jurisdiction of this court.

The Tenant’s Submission

22. The Tenant filled written submissions dated 23rd September 2021 in support of his case. He submitted on the issue of controlled tenancy, placing reliance upon section 2 Cap 301 and the rendition by the court in the case of Al-Riaz International Limited vs. Ganjonis property Limited [2015] eKLR,that he was a protected tenant and that the court has proper jurisdiction to deal with the instant case.

23. It is his submission that the copy of the sub-lease relied upon by the Respondents as a proof of ownership is in itself unforceable for reasons that deceased is not a registered owner of the property.

24. He further submits that he stands to suffer irreparable financial loss, prejudice and damages due to unprocedural, malicious and unlawful actions of the respondents if the said orders are denied.

The Landlords’ Submission

25. The landlords’ filled written submissions dated 1st October 2021 in support of their case. They submitted on four issues: whether the tenancy is controlled tenancy; who is the landlord of the suit premises; does the tenant owe rental arrears; and, whether the tribunal should grant the orders sought.

26. They submitted agreeing with the Tenant deponent that, indeed their existed a controlled tenancy.

27. In respect to the second issue, the Respondents submit that placing reliance upon section 107 of the Evidence Act which stipulates that; whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

28. They submitted that the Tenant is being mischievous in his refusal to honour the terms prescribed in the tenancy between him and the deceased.

29. They submitted that Tenant is being dishonest as he has since failed to disclose to this court that there exists a lease agreement between him and the deceased Landlord dated 1st October 2015, which lease was for a period of 21 years from the 1st day of February 2010. That the failure by the tenant to disclose the said facts is a clear evidence of mala fides and denies him a right to equitable remedies.

30. It is their submission that the Tenant is misleading the court by failing to disclose that for the period of 8 years he dutifully paid monthly premiums to the deceased landlord but immediately started paying to a stranger after the deceased died.

31. They further submit that the Tenant is fully aware of the existing lease agreement between him and the deceased Landlord and not the deceased mother, thus, allegations that he paid the rent to the mother of the deceased cannot vindicate or absolve him whatsoever.

32. Relying upon section 79 of the Law of Succession Act, they affirmed that the property of the deceased vests upon the personal representative being an administrator or executor whom representation has been granted.

33. They further submitted that the Tenants cannot pick new Landlord in defiance of the express provisions in the tenancy agreement and the law that it is not his place to appoint administrators on behalf of the estate of the deceased.

34. In their final submission, they state that the tenant is undeserving of the reliefs he is seeking, that he is in default of payment of rent.

Analysis of Law and Determination

35. I have carefully analyzed all the pleadings before this honorable Tribunal, all relevant evidence adduced before this Tribunal. There being no contestation as to the Jurisdiction of this court, I shall then proceed to the merit of the applications before me.

36. I find that, three main issues fall for determination, whether the letters of administration are valid; who is the rightful owner of the suit premises; and, whether the tenants are in default of rent payment.

37. On the first issue touching on the validity of the letters of administration, i find that it is an issue which goes beyond the root of this court. It involves issues of succession. Jurisdiction of this court is very clear and that determination of that issue does not fall within the four corners of this court’s jurisdiction. Precisely, High Court, family and succession division has exclusive jurisdiction on issues of such a nature. Therefore, if the parties wish to challenge the validity of the letters of administration, they should do so in the high court, family and succession division. However, I am guided by the fact that the letters of administration are a public document and prima faciethe burden of proof is met and if any doubt is cast it is up to the tenant to adduce the same. It is indeed a court order of the superior court which binds me and points at who is supposed to be managing the estate of the deceased landlord pending confirmation of grant.

38. However, on who is the rightful Landlord of the suit premises, it is imperative that its determination requires establishment of the person with the rightful responsibilities duly granted either by the owner of the premise or that the person is the owner to the suit premise. No document has been produced before me to show proof of ownership by the Tenant neither has the said Mary Gakibe been added as an interested party in this course. Be as it may as I had earlier said this is a determination that ought to end up at the doorstep of the probate court. In deed a letter of administration is before me which I cannot turn a blind eye on the same I am guided by it in reaching my decision.

39. After the deceased passed away though it appears the mother (Mary Wambui Gakibe) started receiving rent which was being deposited as they fall due. The same has been admitted by the mother in a letter dated 4th June 2021.

40. The Landlord to a property does not necessarily have to be the owner of the property. In the present case, we do not have to establish the rightful owner in order to find the landlord. While the respondents deponed that the mother of the deceased is a stranger to the suit premise, I find that she has been consistently receiving rent. That her conducts were in good will absolutely representing the wishes and interest in the estate of the deceased.

41. The respondents have on one hand averred that Mary Wambui Gakibe is a stranger to the suit premise and on the other that she is their grandmother I therefore find that as stated earlier a challenge to the conduct of the said person. Then, should be taken before the probate court on the issue of intermeddling. I cannot therefore make a finding on arrears owing before grant of letters being 18th February 2021 as that is beyond my jurisdiction.

42. Finally, on the last issue of whether the tenants are in default of rent payment, I find that, the tenants are not in any default of rent payment. Any claims for rent ought to be directed to the said Mary Wambui Gakibe in the right forum who has been interim Landlord to the suit premise.

43. The upshot of this finding is that, I allow orders sought by the Tenant in his notice of Motion dated 9th June 2021 as follows:

a) The Respondents, their servants, employees or authorized agents, auctioneers and or employees, building manager, be restrained forthwith by the honourable tribunal from interfering, taking possession of the tenant’s business on LR No. 36/VII/435, Eastleigh, Nairobi from intimidating, harassing, evicting, distressing for rent, locking up and/or in any other manner interfering with the tenant’s quiet possession and enjoyment of his business on LR No. 36/VII/435, Eastleigh, Nairobi.

b) I hereby direct in line with the grant of letters of administration dated 18th February 2021 that pending confirmation of grant which is ideally ought to be done 6 months from the date of publication of the letters of administration all the proceeds of rent from 1st of December 2021 be preserved in a joint interest earning account between both counsels within 14 days.

c) Upon confirmation of grant the rent should be paid and/or released to the persons indicated in the confirmed grant and/or as directed by the probate court, the tenants shall from the date hereof, pay rent to the joint interest earning account.

d) Any dispute as to the rent claimed to be in arrears falling in the period between, the death of the deceased and the date of issuance of the grant of letters of administration and to the date of this ruling be referred to the probate Court.

e) Tenant’s Reference is compromised on similar terms.

f) Each party to bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 30thday ofNovember, 2021 in the presence of Mohamed Msfor Lakichafor theTenantandMwangifor theRespondents/Landlords.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL