[2024] KEBPRT 319 (KLR)

Mwangi v Mulanda & 3 others (Tribunal Case E183 of 2023) [2024] KEBPRT 319 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 319 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E183 of 2023

N Wahome, Member

February 29, 2024

Between

Francis Mwangi

Tenant

and

Anjeline Shikokoti Mulanda

1st Respondent

Kelphas Itenyo

2nd Respondent

Sarha Lihanda

3rd Respondent

Charles James Karani t/a Jakacha Auctioneers

4th Respondent

Ruling

1. The Applicant commenced these proceedings by the Reference dated 24. 11. 2024. The same was said to be founded on section 12(4) of theLandlord and Tenant (shops, hotels and catering Establishments Act)cap 301 which is hereafter referred to as the Act. The Applicant’s complaint was that;-“That the landlords have been harassing, intimidating me with threats of eviction by sending auctioneers in my business goods without an order from the Rent Tribunal court or any other court of law contrary to cap 301 Laws of Kenya. I request the Rent Tribunal court and OCS Kakamega police station to order the landlords to stop harassing me with threats of eviction.”

2. With the reference was filed the notice of motion Application of the even date. The Application sought for the following reliefs;-a.Spentb.That this Honourable court be pleased to issue a temporary injunction to the 2nd, 3rd and 4th Defendants from levying distress of the Applicant herein pending hearing and determination of this Application.c.That this Honourale Court be pleased to issue a temporary injunction to the 2n, 3rd and 4th Respondents from levying distress of the Applicant herein pending hearing and determination of the suit.d.That this Honourable court be pleased to issue a stay of execution of the proclamation letter dated 15. 5.2023. e.That the OCS Kakamega police station to ensure compliance of the orders.f.That costs of this Application be provided for.

3. The Applicant further filed a list of documents, the documents thereof and a list of witnesses also dated the 24. 11. 2023.

4. The 2nd and 3rd Respondents on their part filed the Replying affidavit sworn on the 8. 12. 2023 by the 3rd Respondent Kelifas Itenyo Mukhanatsi with the authority of the 2nd Respondent Sarah Lihanda. This was responded to by the Applicant by his further affidavit sworn on the 21. 12. 2023.

5. On her part, the 1st Respondent filed her replying affidavit sworn on the 22. 1.2024 with submissions of the same date. At the time of writing this judgment, it is only the 1st Respondent who had rendered submissions in this matter.

6. I will now with brevity attempt at stating the respective cases of the parties as per the evidence presented before this court.

7. The case for the Applicant is that;-i.He was a tenant of the 1st Respondent and had faithfully paid rent for the demised premises until June, 2023 when issue of ownership arose and he therefore stopped further payment of rent.ii.No one had ever advised him on who to pay rents and was ready to comply when properly directed.iii.The action of the 2nd, 3rd, 4th and 5th Respondents of attempting to levy distress on him was unmerited and unwanted.iv.Asked that the Respondents so be restrained from interfering with his tenancy and further be restrained from levying distress on his property.

8. The case for the 1st Respondent was that;-(i)she was owner of the demised premises until the same was rented to the 2nd and 3rd Respondents by a judgment of Kakamega High Court in HC ELC No. 273 of 2017,(ii)her tenancy with the Applicant was between 2020 and 2021 and had since expired and she never renewed the same and there was therefore no landlord/Tenant relationship between the two.(iii)she was a stranger to these proceedings and without a landlord/Tenant relationship between the parties, this court had no jurisdiction to entertain any matter between the parties.

8. The 1st Respondent further invoked the provisions of cap 301 and the following case law in support of her case;i.In the matter of the Advising Opinion of the Supreme court, Constitutional Application No. 2 of 2011. ii.TheMotor Vessel “Lillian “S” v Caltex Oil (Kenya) [1989] eKLR.iii.The Owners and Matter of the Motor Vessel “Joey” and the Owners and Matters of the Motor Tugs “Barbara” & “Steve B” [2007] eKLR.iv.Republic v Chairperson Business Premises Rent Tribunal at Nairobi & Another Ex-parte Saraj Housing & Properties Ltd & 2 Others[2016] eKLR.v.Putam v Ratilal & Another [1927] EA 560, andvi.Nandlala Jivaj Shah & 2 Others v Kingfisher Properties Limited [2015] eKLR.

9. The case for the 2nd and 3rd Respondents was that;-a.They were the joint owners of Title No. Kakamega Town Block 1/636 having been bequetted same after the outcome in Kakamega ELC Cse No. 273 of 2017- annexure “KIM 1” and purchase of same from the original owner – annexure “KIM 3. ”b.On obtaining ownership thereof, they by a letter dated 25. 11. 2022 notified all the tenants on the demised premises about the same- annexure “KIM 4. ”c.The other tenants have been compliant but the Applicant has bee defiant.d.The Applicant had to pay rent or deliver vacant possession of the premises he occupies.

10. From the foregoing, I find most issues are settled from the pleadings of the parties. As at the close of the cases for the respective parties, there was no dispute that the 3rd and 4th Respondents are the lawful owners of Title No. Kakamega Town Block 1/636 and therefore the landlords of the Applicant by implication.

11. It then follows that the rent due on the demised premises between June, 2023 and February, 2024 and beyond do rightfully rent to the 3rd and 4th Respondents. There is indeed no claim on the same by either of all the other parties and more so the 1st Respondent. The rents deposited to this tribunal pursuant to the orders made on the 11. 1.2024 shall forthwith be released to the 3rd and 4th Respondents.

12. The issues that therefore pend for determination are in my view the following;-(i)Whether the Applicant’s Application has merit.(ii)Who is liable to pay to the 2nd and 3rd Respondents the rents for December, 2022 to May 2023. (iii)Whether the 3rd and 4th Defendants levy of distress was lawful.

Issue No. A: Whether the Applicant’s Application is merited 13. The Applicant came to court as there were threats of levy of distress and eviction by the 2nd and 3rd Respondents whom he took as strangers to him. He had met his cardinal obligations of paying rent and could not appreciate the basis of the 2nd and 3rd Respondents seeking for more rent from him through threats of eviction and levy of distress.

14. However, as determined that threat has been ameliorated by the settlement of the issue of ownership of Title No. Kakamega Town Block 1/636 and the Tenant is ready to meet his obligations as a Tenant and the landlord is happy to receive his entitlement. Therefore, the Tenant’s Application was necessitated by factors then that have since dissipated and the ……of yesterday have been superseded by the reality of today. Therefore, to allow the Application would be an exercise in vain and the same having achieved its objections in the interim is dismissed.

Issue No. B: Who is liable to pay to the 2nd and 3rd Respondents the rents for December, 2023 to June, 2023 both months inclusive 15. The 1st Respondent argues that she is a stranger in this proceedings and that this court has no jurisdiction to try any issue between her and the Applicant. She insists that her Tenancy Agreement with the Applicant was between the years 2020-2021 which had long expired. She therefore doubted that the Act is applicable in this matter between her and the Applicant.

16. The 1st Respondent in response to paragraph 3 of the Applicant’s supporting affidavit asserted that;-“That in response to paragraph 3, I state that there is no landlord/Tenant relationship between me and the Applicant and the rent alluded to by the Applicant was for the period when I was in ownership of the suit property.”However, a casual look at the receipts issued by the 1st Respondent to the Applicant show that the rent payment was for January, February, March, April and May, 2023. It cannot therefore be true that their relationship had been severed in the year 2021. The Applicant was therefore right and a cause of action had accrued to him against the 1st Respondent as he approached the court.

17. It is therefore my finding that the Applicant collected rents for the demised premises from the Respondents until May 2023 as per the evidence offered to the court. Though the Applicant had testified that he had paid rents to the 1st Respondent up to June, 2023. There was no evidence provided for such payment for the month of June, 2023. The 1st Respondent is therefore liable to refund the 2nd and 3rd Respondents all the rents from the time they acquired ownership of the demised premises until May, 2023.

Issue No. C: Whether the 2nd and 3rd Respondents levy of distress was lawful 18. Section 3(1) of the Distress of Rent Actprovides that;-“Subject to the provisions of this Act, and by any other written law, any person having any rent or rent service in arrear and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent service as is given by the common law of England in a similar case.”

19. In the case of; John Nthumbi Kamwithi v Asha Akumu Juma [2018] eKLR, the court determined that;-“I find that the Appellant had no obligation to seek permission from the tribunal to levy distress. The fact that the tenancy is controlled does not mean that the landlord applies to the tribunal to levy distress. Distress is a right the landlord is entitled to for recover of rent.”

20. The court further held that the only requirement for levy of distress is that there are rent in arrears. The court delivered itself thus;-“This right serves the purpose of a remedy for the landlord to recover rent that may be in arrears. For this right to be enforced, there must be rent in arrears.”From the evidence on record, when the 2nd and 3rd Respondents instructed the 4th Respondent to levy distress in May, 2023, there were rent in arrears as far back as the month of December, 2023.

Issue No. D: Who should bear the costs of this suit 21. In my view, the 1st Respondent was the architect and author of all the confusion and misunderstanding that led to the present action. I therefore would condemn her to pay costs to both the Applicant and the 2nd and 3rd Respondents.

22. In the final analysis, I make the following orders;-(i)That the Reference and Application herein both dated 24. 11. 2024 are dismissed having been overtaken by events and rendered of no effect.(ii)That the 1st Respondent has thirty (30) days to pay to the 2nd and 3rd Respondents the rents paid to her by the Applicants for the months of December, 2022 to May, 2023 and in default the 2nd and 3rd Respondents to commence recovery proceedings.(iii)That all the rents deposited to this Tribunal for the months of June, 2023 to February, 2024 be released to the 2nd and 3rd Respondents on prove of payments of the same by the Applicant.(iv)That the 2nd and 3rd Respondents had a right to levy distress but in view of the findings hereinabove, the same is overtaken by events and therefore of no effect.v.That the 1st Respondent shall pay costs to the Applicant and the 2nd and 3rd Respondents to be agreed upon by the parties and in default to be assessed by the Deputy Registrar of this Tribunal.

Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KAKAMEGA THIS 29TH DAY OF FEBRUARY, 2024. HON. NDEGWA WAHOME, MBS - MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of; Mr. Nandwa for the 2nd and 3rd RespondentsThe Tenant in present in personIn the absence of the 1st and 4th Respondents