[2022] KEBPRT 680 (KLR)

Mutungi (being an Administrator of the Estate of the late Maina Koine) v Macharia; Njiru (Intended Respondent) (Tribunal Case 579 of 2011) [2022] KEBPRT 680 (KLR) (Civ) (29 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 680 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 579 of 2011

Gakuhi Chege, Vice Chair

July 29, 2022

Between

Margaret Mbatha Mutungi

Landlord

being an Administrator of the Estate of the late Maina Koine

and

John Macharia

Tenant

and

Ambrose Njiru

Intended Respondent

Ruling

1. The landlord moved this tribunal videan application dated January 18, 2022 seeking in material part that this tribunal be pleased to join Ambrose Njiru as a 2nd respondent/subtenant in this matter.

2. The landlord further seeks for an order to compel the 2nd intended respondent to disclose the person to whom he pays rent for the shade in dispute and to provide the rent payment accounts for the same.

3. It is further sought that the intended 2nd respondent be completed to account how much he has paid to the head tenant and the latter be compelled to deposit the said rent with the tribunal.

4. The landlord is also seeking that the 2nd intended respondent be compelled to pay rent arrears from the time he entered into the said shade and that he deposits the monthly rent with the tribunal or the landlord.

5. The application is supported by the landlord’s affidavit of even date and the grounds on the face of the application. The intended 2nd respondent is said to be the previously unknown subtenant who is in occupation of the suit property and who is also mentioned in the rent inspector’s report of March 5, 2021.

6. The 1st respondent is alleged to have refused to reveal the particulars of the intended 2nd respondent despite having illegally sublet the shade to him with a view to ousting jurisdiction of the tribunal.

7. It is against the said background that the orders herein are sought in the interest of justice.

8. In a replying affidavit sworn on February 3, 2022, the respondent/tenant is opposed to the orders sought stating that in view of the rent inspector’s report filed before the Tribunal, it has no jurisdiction to entertain this matter further as he was no longer in occupation of the suit premises. He further states that he does not know Ambrose Njiru and that he had no subtenant in respect thereof.

9. He denies receiving any rent from Ambrose Njiru. It is the tenant’s case that the latter ought to be sued in a separate case and not as a co-respondent in this suit which is technically concluded and/or overtaken by events.

10. The applicant swore a further affidavit on February 14, 2022 reiterating that Ambrose Njiru was the same person referred to in the inspector’s report as ‘Mureithi’ and holder of mobile no 07xxxxxxxx which she shared with her advocate and his true name became known later. She therefore prays that the said Ambrose Njiru be joined in this suit as a party.

11. The applicant has attached as annexure ‘MMM aa’ a decree in which the tenant had filed suitvideMilimani CMCC No 4370 of 2012 in which he sought for a declaration that he owns shade no 28, Kamukunji Jua Kali Association which case was on October 23, 2019 dismissed with costs of Kshs102,890/-.

12. The proposed 2nd respondent/tenant filed a replying affidavit sworn on June 8, 2022 in opposition to the application deposing that he was a tenant of the wife to 1st respondent one Hilda Macharia. He has annexed an Mpesa statement showing payment of rent on three (3) occasions to the said Hilda Macharia. On August 21, 2022, he paidKshs 60,000/-, on March 1, 2022 he paid Kshs60,000/- and on May 16, 2022 he paidKshs15,000/-.

13. The proposed 2nd respondent opposes the application on the grounds that he was unaware of the applicant’s proprietary interest in the suit premises as he had no agreement with the latter.

14. The proposed 2nd respondent deposes that he has enjoyed quiet possession of the suit premises for two years and had diligently paid rent to the 1st respondent’s said wife. He had by the time of searing the affidavit paid rent up to the month of May 2022.

15. The proposed 2nd respondent claims to be a stranger to the agreement between the applicant and 1st respondent and objects to being enjoined since he was a third party to the agreement. He only claims tenancy rights over the suit premises.

16. The application was directed to be disposed of by way of written submissions. However, only the landlord and the 1st respondent complied. I shall consider the submissions together with the issues for determination set out below.

17. Going by the pleadings, I am required to determine the following issues:-(a)Whether the applicant is entitled to the reliefs sought in the application dated January 26, 2022. (b)Who is liable to pay costs of the application?.

18. The application is expressed to be brought under Order 1 rule 3(3), Order 50 rule 1 and section 3A of the Civil Procedure Act & Rules made thereunder.

19. Order 1 rule 3(3) of theCivil Procedure Rules provides as follows:-“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise”.

20. Order 1 rule 10(2) of theCivil Procedure Rules provides as follows:-“The court may at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in the suit, be added”.

21. The landlord submits that the 1st respondent sublet the premises to the proposed 2nd respondent to defeat justice in this case. The person referred to in the rent inspector’s report is the said 1st respondent according to the applicant. The tenancy between the applicant and the 1st respondent has never been terminated and the latter continued to receive rent from the proposed 2nd respondent without commensurate payment to the landlord.

22. The landlord cites the case of Civicon Limited v Kivuwatt Limited & Others [2015] eKLR in which the court of appeal held that the power to add a party is discretionary with the overriding interest being whether he has an interest in the suit and whether without his presence the question in the suit cannot be completely and effectively decided.

23. The discretion is wide and the court has power to make necessary amendments as to the parties to a suit by adding, substituting or striking them out and making all such changes in respect of the parties as may be necessary to enable an effectual adjudication to be made concerning all matters in dispute between them. The court has a separate, independent duty from the parties themselves to ensure that all necessary and proper parties are before it so that it may effectively and completely determine and adjudicate upon all matters in dispute.

24. In the case ofMeme v Republic[2004] 1EA 124 cited by the landlord, the superior court held that a party can be joined for the following reasons:-(i)“His presence will result in the complete settlement of all the questions involved in the proceedings.(ii)To provide protection for the rights of a party who would otherwise be adversely affected in law.(iii)To prevent a likely course of proliferated litigation”.

25. On the other hand, the tenant submits that the inspection report mentions a Mr Mureithi who is said to be in possession of the suit premises but who has not been pursued.

26. According to the tenant, the landlord ought to have advanced evidence to first establish and prove that the intended party is in occupation of the suit premises and that he was a subtenant of the tenant and pays rent to him. It is contended that the landlord has not satisfied any of the pre-conditions for joinder of the intended 2nd respondent.

27. I have looked at all the evidence and materials placed before me including the inspection report and the affidavit of the intended 2nd respondent and note that the latter has confirmed to be the person in occupation of the suit premises. He also confirms and has placed evidence before the tribunal that he pays rent to one Hilda Macharia who is the wife of 1st respondent.

28. It is imperative to note that the 1st respondent had filed suit at Milimanivide CMCC No 4379 of 2012 against the landlord herein claiming a declaration that he is the rightful and absolute owner of Kamukunji Jua Kali Association Shade No 28 (subject matter herein) and he failed to establish his claim as evidenced by annexure ‘MMM aa”. It is therefore necessary to establish how his wife then became the landlord of the suit premises after dismissal of the said suit.

29. I note that the tenant/1st respondent has not denied that he was a tenant of the late husband of the landlord herein and this tribunal need to investigate under section 12(4) of Cap 301, how the suit premises changed hands from him to his wife and finally to the proposed 2nd respondent.

30. Under Order 1 rule 10 (2) of the Civil Procedure Rules, this court has power to order joinder of a party either upon or without application of either party to a suit. I shall therefore exercise my discretion to join both the proposed 2nd respondent and Hilda Macharia (wife of the 1st respondent) as respondents in this suit to enable all questions involved herein to be effectively and completely adjudicated upon with finality.

31. As regards costs, the same are in the court’s discretion and I shall order that costs of the application abide the outcome of the reference.

32. In regard to all the other issues raised in the application and the reliefs sought in that regard, the same shall be escalated to full hearing and determination.

33. In conclusion therefore, the following orders commend to me:-(i) The application dated January 18, 2022 is allowed in terms of prayer 3 thereof.(ii) The 1st respondent’s wife, Hilda Wachira is also joined in this case as a 3rd respondent being a necessary party to these proceedings on the Tribunal’s own motion.(iii) Prayers 4,5,6,7 and 9 shall be heard and determined through viva voce evidence under section 12(4) of Cap 301, Laws of Kenya.(iv) The matter shall be fixed for hearing on priority basis upon all the parties complying with order 11 of the Civil Procedure Rule by filing documents in support of their respective cases.(v) All future rent in respect of the suit premises with effect from August 2022 shall be deposited with this tribunal until conclusion and/or determination of the instant proceedings.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Ayola for the landlord/AdministratorMburu for the intended Respondent/subtenantKarwanda for the TenantFurther order:Mention on 1/9/2022 to confirm the filing and exchange of all compliance documents and taking a hearing date.Respondent to make copies of all pleadings from the court file.Parties to be supplied with typed ruling upon payment of requisite court fees.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL29th July 2022