[2022] KEBPRT 761 (KLR)

Mwangi v Oluoch & another (Tribunal Case 69 of 2021) [2022] KEBPRT 761 (KLR) (Civ) (30 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 761 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 69 of 2021

P May, Vice Chair

September 30, 2022

Between

Richard Mwangi

Landlord

and

Moses Oluoch

Tenant

and

Direct O. Auctioneers

Respondent

Ruling

1. The Applicant Richard Mwangi is the Landlord and the registered owner of the business premises (hereinafter known as the Landlord) located at Block 5/46 Nakuru Municipality which the Tenant contends is located in plot Number North South lake/111669.

2. The firm of M/S Mobegi and Co. Advocates represents the Landlord/Applicant.

3. The 1st Respondent Moses Oluoch is the Tenant of a rented business space. (hereinafter known as the Tenant)

4. The firm of M/S Mola, Kimosop and Njeru Advocates represents the Tenant/Respondent.

The Dispute Background 5. The Tenant filed an amended notice of motion dated 4th April 2022 supported by an affidavit sworn by Moses Maina Oluochi sworn on an even date.

6. The Application inter alia seeks that this Tribunal reviews its orders given on 27th January 2022, recovery and reinstatement of the Tenant/Applicant into possession of the premises in dispute and the return of the Applicant’s tools of trade, proclaimed goods and food products at the Landlord’s cost.

7. In response to the application, the 1st Respondent filed a replying affidavit sworn by Richard Mwangi on 22nd March 2022. The Tenant/Applicant filed a further affidavit sworn by Moses Maina Oluochi on 6th April 2022 and submissions in support of his application dated 19th February 2021 on 19th April 2022.

8. The Landlord/1st Respondent filed his submissions on 2nd June 2022.

Jurisdiction 9. The jurisdiction of this Tribunal is disputed by the Tenant/Applicant who claims the suit premises are not owned by the Landlord/1st Respondent.

The Tenant’s Claim 10. The Tenant claims he used to operate a posho mill on a make-shift non-permanent structure (mabati house) on a plot that partially occupies Land reference No. North Southlake/111669 owned by the Young Christian Association and part of a Kenya Power wayleave.

11. He contends that the structure is owned by one Dorothy Achieng Rading with whom they have a separate oral lease agreement as to the tenancy of the premises. Therefore, there was no Landlord tenant relationship between him and the Landlord/1st Respondent as he did not own the premises. As such there can be no rental arrears existing between the Applicant and the 1st Respondent.

12. He further contends that to his surprise, he was summoned on 25th February, 2022 by a person who identified himself as an auctioneer indicating that they were at his premises where they wanted to break in, distress for rent and secure eviction. He states that since he was away, when he arrived he found that the auctioneers had broken into the premises, carted away his tools of trade and food produce that he used to sell among other things.

13. He further states that a police officer on site showed him the order of this Tribunal dated 27th January 2022 which allowed the 2nd Respondent to levy distress against him. At which point he had no recourse but to seek recourse from this Tribunal.

14. The Tenant/Applicant also contends that the application by the Landlord dated 26th January 2022 and the order by the Tribunal dated 27th January 2022 was not served upon him since at the date of the purported service, he was admitted in a hospital in Kakamega and only came back to Naivasha on 5th February 2022. As such he claims the failure to serve him with both the Application and the order curtailed and infringed upon his right to fair hearing.

The Landlord’s Claim 15. According to the Landlord’s replying affidavit sworn on 22nd March 2022 in response to the Tenant’s application, the Landlord seeks dismissal of the Tenant’s application plus costs on the basis that it lacks merit and is a waste of the court’s time. The Landlord contends that the Tenant was served with a legal termination notice dated 8th March 2021 which was duly served upon him. That the reasons for termination were clearly indicated in the notice as non-payment of rent by the Tenant/Applicant.

16. He further contends that the Tenant never opposed the notice despite being properly served and instead ignored it and continued occupying the premises without paying rent. He states that he moved to court as the Tenant/ Applicant never opposed the notice where he obtained lawful tribunal orders dated 27th January 2022 allowing him to levy distress through the 2nd Respondent recover rent arrears owing to him by the Tenant/Applicant.

17. He submits that the Tenant’s/Applicant’s application has been overtaken by events since the Tribunals order dated 27th January 2022 has already been executed after due procedures were followed. That a proclamation notice was issued by the 2nd Respondent acting on the instructions of the 1st Respondent and the Tenant/Applicant was therefore notified of the intended sale of his property in fulfillment of a lawful court order but did nothing to prevent it.

18. Further that the Tenant did not move the court for stay of the said order or appeal against the order in despite having been duly served with the same. The Landlord also contends that there existed a Landlord-Tenant relationship between himself and the applicant in Block 5/46 Nakuru Municipality where he had rented out his premises to the Applicant to carry out a posho mill business before the order of eviction made on 27th January 2022 was enforced.

19. The Landlord states that this relationship can be proven Mpesa statements he has attached confirming that he was receiving money for rent and electricity from the Applicant/Tenant through Safaricom Number xxxx before he started defaulting.

20. The Landlord submits that this Tribunal had the jurisdiction to issue the order dated 27th January 2022 as there existed a tenancy relationship between him and the Tenant/Applicant in Block 5/46 Nakuru Municipality and not South Lake/111669 as claimed by the Applicant/Tenant, whom he contends has not adduced evidence to assert his claim.

List of issues for determination 21. The issues raised for determination before this Tribunal are as follows;i.Whether this Tribunal has jurisdiction to hear and determine this matter.ii.Whether the termination of the Tenant was valid.iii.Whether the Applicant has satisfied grounds for setting aside, reviewing and/or varying the Honourable Tribunal orders dated 27th January 2022. iv.Which remedies are available to the parties.Analysis and Findingsi.Whether this Tribunal has jurisdiction to hear and determine this matter.

22. It is the Applicant’s/Tenant’s contention that this Tribunal lacks jurisdiction to hear and determine this matter on the basis that there exists no Landlord/Tenant relationship between him and the Respondent.

23. The basis of the Tenant’s contention is that the Landlord herein is not the bonafide landlord who rented out the business premises and the landlord whom he recognizes is one Dorothy Rading whom he claims they have an oral agreement with.

24. The Landlord on his part, has produced a Chief’s letter and a letter from the Kenya Power and Lighting Company to prove that he is the owner of the suit premises. He has also adduced Mpesa Statements to confirm that one Dorothy Rading has been paying rent to him for the suit premises.

25. To begin, this Tribunal is of the view that by making the instant Application to this Tribunal, the Applicant/Tenant acceded to this Tribunal’s jurisdiction. Otherwise how would this Tribunal make a determination on his Application without having jurisdiction? Further, the jurisdiction of this Tribunal is spelt out in Section 12 of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act, CAP 301 which regulates controlled tenancies.

26. The suit premises were a controlled tenancy. None of the Parties have denied this fact. The question that now lies before this Tribunal is whether the Suit premises belong to the Landlord/ 1st Respondent herein. The question of ownership is beyond the jurisdiction of this Tribunal. The Jurisdiction of this Tribunal as per Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is limited to controlled tenancies.

27. That notwithstanding, this Tribunal notes that a common thread in the pleadings by both the Applicant and the 1st Respondent is the name Dorothy Rading. The Tenant claims that she is the Landlord who offered him the lease orally whereas the Landlord contends he has been receiving rent from the same Dorothy Rading.

28. In light of those circumstances, this Tribunal finds that the Applicant herein is the sub tenant of Dorothy Rading who was paying rent to the 1st Respondent herein. What then is the effect of termination of a tenancy on a sub tenancy?

29. The guiding principle on this matter can be found at Section 5 of CAP 301 which provides as follows:5. Effect on sub-tenancies(1)Where a Landlord is himself a tenant, the termination of the landlord’s tenancy shall not of itself terminate a controlled sub-tenancy, but for the purposes of this Act the person entitled to the interest in reversion expectant on the termination of the Landlord’s tenancy shall be deemed to be the landlord of the controlled sub-tenancy upon the terms and conditions thereof and subject to the provisions of this Act.(2)Where a Landlord gives a tenancy notice to his tenant, he may at the same time give a similar notice to any person to whom the tenant has sub-let the whole or any part of the premises concerned and thereupon the provisions of this Act shall apply to the sub-tenant, and his sub-tenancy, as if he were the tenant of such landlord.(3)Where a Landlord, in accordance with the provisions of subsection (2) of this section serves notices on both the tenant and the sub-tenant, the Tribunal may consolidate any references made to it by the tenant and the sub-tenant, and may hear them simultaneously and may make such orders concerning the tenant and the sub-tenant as may be necessary.(1)Where a Landlord is himself a tenant, the termination of the landlord’s tenancy shall not of itself terminate a controlled sub-tenancy, but for the purposes of this Act the person entitled to the interest in reversion expectant on the termination of the Landlord’s tenancy shall be deemed to be the landlord of the controlled sub-tenancy upon the terms and conditions thereof and subject to the provisions of this Act.(2)Where a Landlord gives a tenancy notice to his tenant, he may at the same time give a similar notice to any person to whom the tenant has sub-let the whole or any part of the premises concerned and thereupon the provisions of this Act shall apply to the sub-tenant, and his sub-tenancy, as if he were the tenant of such landlord.(3)Where a Landlord, in accordance with the provisions of subsection (2) of this section serves notices on both the tenant and the sub-tenant, the Tribunal may consolidate any references made to it by the tenant and the sub-tenant, and may hear them simultaneously and may make such orders concerning the tenant and the sub-tenant as may be necessary.

30. From the foregoing provisions of Cap 301 and the facts of the instant suit, this Tribunal is of the view that the termination of tenancy applied to the Applicant applied to the Tenant herein provided it was lawful and in accordance with the provisions of Section 4 of Cap 301. I will therefore proceed to analyze whether the termination was valid.ii.Whether the termination of the Tenant was valid.

31. Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides for the legalities to be followed when terminating a controlled tenancy or when altering the terms of a controlled tenancy. The provisions on the issue of notice are clear that if a Landlord intends to terminate a controlled tenancy, he should do so in accordance with the provisions of the Act.

32. Section 4(2) of the Act provides that:“A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

33. Section 4(4) is also to the effect that the notice can only take effect after two months of receipt by the receiving party and the notice must also specify the grounds upon which the requesting party seeks alteration of the terms. The receiving party on his part has to notify the requesting party after the date of receipt of the notice whether or not he agrees to comply with the notice.

34. The Landlord contends that the Tenant was served with a legal termination notice dated 8th March 2021 which was duly served upon him. That the reasons for termination were clearly indicated in the notice as non-payment of rent by the Tenant/Applicant. He further contends that the Tenant never opposed the notice despite being properly served and instead ignored it and continued occupying the premises without paying rent.

35. The matter was even brought to this tribunal through a reference dated 8th March 2021 filed on 8th March 2021 which was not opposed by the Tenant herein. This Tribunal is therefore of the view that the termination was valid.iii.Whether the Applicant has satisfied grounds for setting aside, reviewing and/or varying the Honourable Tribunal orders dated 27th January 2022.

36. The Applicant in his amended notice of motion seeks orders that this Tribunal sets aside, varies and or reviews its orders issued on 27th January 2022. Further that the Tribunal orders the recovery of possession and reinstatement of the Applicant back into his business premises.

37. The basis of his application are that the 1st Respondent obtained the orders dated 27th January 2022 by concealment and fraudulent misrepresentation of material facts which he contends are tantamount to the offence of perjury.

38. He also contends that he is apprehensive that he shall suffer irreparable losses and damage if the Respondents and its agents are allowed to proceed with the illegal auction of the Applicant’s goods and tools of trade and further that the Application shall be rendered nugatory if the prayers sough are not urgently considered and granted.

39. The Applicant has submitted extensively including quoting the cases of Spares Corner (K) ltdvMariam Noor Mohammed & Others(2003) eKLR, Sicily Mikui MulwavJohn Mulwa Kathanzu & Another (2022) eKLR and Abdirahaman Siyat SalatvFara Ali Bare (2021) eKLR . This Tribunal takes note of those impressive authorities whose common thread is grounds for review or setting aside of an earlier order by a court or Tribunal.

40. In looking at the principles enunciated in the afore mentioned authorities and the facts of the instant suit, to make a determination on whether to set aside the orders issued on 27th January 2022, this Tribunal is to mainly look at whether there was proper service of various vital documents such as the notice of termination of tenancy, the reference to this Tribunal and other accompanying documents and the orders of this Tribunal dated 27th January.

41. Various affidavits of service have been filed in a bid to prove these. These are the affidavits sworn by Samuel Mugo on 28th January to the effect that he occasioned service of the order of this Tribunal dated 27th August 2022 which the Applicant disputes and states that he was admitted in hospital in Kakamega on that day.

42. Another issue that has been brought up by the Applicant herein is the affidavit by Inspector Kareithi who is quoted by the Samuel Mugo in his affidavit sworn on 28th January 2022 as having facilitated service of the order upon the Applicant herein. The affidavit sworn by Joseph Gathii Kariithi on 7th April 2022 is titled Affidavit of Service is in no way an affidavit of service as per the law since the averments contained therein do not contain details of service but rather the deponent is claiming he did not meet any Samuel Mugo on the date which he claims the service was done.

43. From the foregoing, it is not clear what events transpired and this Tribunal is inclined to set the same aside the same but the said orders having been issued by this court over a year ago it is an exercise in futility to issue such orders without clear directions this Tribunal will as such grant the Tenant a hearing only limited to damages arising from the eviction only if the eviction was illegal.

Orders 44. Having made the analysis above. This Tribunal makes the following orders:i.The Tenant to pay the Landlord thrown away costs of KShs. 10,000. 00. before the hearing date failure to which this matter will stand dismissed.ii.That hearing is set for 14th November 2022 to the extent of damages only if any.iii.Tenant is at leave to file any further responses within 14 days and the Landlord has 14 days to do a further response too after service.iv.Each party to bear its own costs.

HON. A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. May (Vice Chair) this 30th day of September, 2022 in the absence of the parties.HON. P. MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL