[2024] KEBPRT 1065 (KLR)

Ngugi v Wachira & 10 others; Ngugi (Interested Party) (Tribunal Case E1049 of 2023) [2024] KEBPRT 1065 (KLR) (1 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 1065 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1049 of 2023

CN Mugambi, Chair & Joyce Murigi, Member

March 1, 2024

Between

Susan Ngina Ngugi

Applicant

and

Andrew Wachira & 10 others

Respondent

and

Evanson Kamau Ngugi

Interested Party

Ruling

Introduction 1. The Interested Party/Applicant’s notice of motion dated 30. 10. 2023 seeks an order that M/s Evanson Kamau Ngugi be enjoined as an Interested party in this suit. The Applicant has also sought the costs of the Application.

The Applicant’s depositions 2. The Applicant has sworn an affidavit in support of his Application where it is deponed that;a.That he is the true and bonafide landlord of the Tenants herein and the Tenants have all along been paying rent to the Applicant who constructed the suit premises occupied by the Tenants.b.That there exists Case No. ELC 089/2021 at the Kikuyu Law Courts where the Applicant has filed a defence and a counter claim setting out his claim in the suit premises and the court in that matter had issued an order for status quo before the Respondent in this matter filed the instant suit; the Respondent therefore had no power to issue the notices to vacate to the Tenants.c.That there is no Landlord and Tenant relationship between the Respondent and the Tenants listed in her Application before court as the Tenants are the Applicant’s Tenants, the Tenants have confirmed that indeed they are the Interested Party’s Tenants.d.That the proceedings before the Tribunal have a direct bearing to and do affect the rights and interests of the Applicant as the Respondent is seeking orders of eviction against the Applicants/Tenants which will financially affect the Applicant.

The Respondent’s depositions 3. The Respondent, Susan Ngina Ngugi has sworn a Replying affidavit in opposing the Interested Party’s Application wherein it has been deponed;a.That she is the registered/proprietor of L.R. No. Kiambaa/Kihara/8491 or subdivision of L.R. Kiambaa/Kihara/5733 and from which the Interested Party also took L.R. No. Kiambaa/Kihara/8490. b.That the Respondent took possession of her portion and renovated the same using materials purchased from the Applicant’s hardware shop at a cost of Kshs. 450,000/=.c.That all the developments and subdivision of the suit property was done while the mother to the parties was still alive and the Applicant never objected.d.That out of mutual agreement, the Respondent allowed the Applicant to collect rent from some of the Tenants from February 2021 to February 2022. e.That even after the parties mother died in August 2021, and the Tenants were paying rent to the Respondent, she continued to give money to the Applicant.f.That in December, 2021, the Respondent sued the Applicant and his wife in Kikuyu ELC Case No. 089/2021 for collecting rent in her property without her consent.g.That there have been attempts at a mediated settled involving the parties uncle Mr. Martin Gatheca Gaiti and an agreement dated 03. 08. 2022 was signed by the parties.h.That pursuant to the said agreement and the terms thereof, the Applicant herein and his wife stopped collecting rent from the suit premises from September 2022 to June 2023 when they began interfering again.i.That the Respondent has no interest in the suit property and the Affidavits of the Tenants claiming to have been paying rent to the Applicant are false and further the assertion that there does not exist a Landlord/Tenant relationship between the parties is a smoke screen.

4. The Respondent has also filed affidavits sworn by M/s Nahashon Mburu, Martin Gatheca Gaiti and Henry Mbugua in support of her Replying affidavit. Mr. Nahashon Mburu confirms that he is the one who did the subdivision work on L.R. Kiambaa/Kihara/5733 from which L.R. Kiambaa/Kihara/8491 was excised.Mr. Martin Gatheca has deponed that he oversaw the arbitration between the parties herein leading to an agreement dated 03. 08. 2022. The same position is reiterated by Mr. Henry Mbugua in his affidavit. Both Mr. Mbugua and Mr. Gatheca confirm that they witnessed the agreement between the parties dated 03. 08. 2022.

Analysis and determination 5. The Interested Party/Applicant seeks to be added into these proceedings for the reasons that he is the Landlord of the Tenants, that there is pending a case in the ELC Court at Kikuyu between the parties, that there does not exist a Landlord/Tenant relationship between the Respondent and the Tenants and that therefore the Respondent had no capacity to issue to issue the notices to the Tenants.The Applicant also seeks to be joined to these proceedings because he states his financial interests and rights will be directly affected by the orders sought against the Tenants by the Respondent were the Respondent to succeed.

6. It is common ground that the Respondent herein has sued the Applicant and his wife in Kikuyu ELC Case No. 089/2021. In the said suit, the Respodnent has sought orders restraining the Applicant and Agnes Wairimu Kamau from unlawfully demanding or collecting rent from the suit premises on the basis that the suit premises L.R. Kiambaa/kihara/8491 belongs to the Respondent. I have seen the defence and counter claim filed by the Applicant herein in the matter at the Kikuyu Law Courts. In the counterclaim, the Applicant has sought a declaration that the registration of the suit premises in the name of the Respondent is null and void having been obtained unprocedurally and illegally, a declaration that the Applicant is entitled to the rental income of the portion he constructed in the suit premises and/or a declaration that the Respondent holds title to the suit premises in trust for himself and the Applicant and his wife.

7. The matter before the ELC court at Kikuyu is still pending as the parties have not shown any evidence of its conclusion and the outcome thereof. The dispute touches on the proprietorship of the land and therefore the entitlement to the rent proceeds from the suit premises. the Tribunal does not have the power and jurisdiction to determine who between the parties owns the premises. The Tribunal has no jurisdiction to make a declaration as to trust or nullification of registration of any ownership instrument over the suit property. The determination of the ownership of the suit property is best left to the ELC Court already seized of the matter.

8. The Tribunal however, has the jurisdiction to determine who between the warring parties is the Landlord of the Tenants. This is so because the registered proprietor of land is not necessarily always the landlord and conversely, the Landlord of a premises is not necessarily always the registered owner of the premises.

9. The determination of who the Landlord of the suit premises is, in the circumstances of this case can only be determined if the Applicant is allowed into this case and given a chance to argue his case. The Applicant’s case cannot be argued while he remains a non-party to the proceedings. Further, I have seen evidence by the Tenants that they have always paid rent to the Applicant, Intended Interested Party and thy have always recognized him as their Landlord. The Respondent for her part has also deponed that she has been collecting rent from the Tenants until the Applicant and his wife, interfered leading to the filing of the ELC Case at Kikuyu.

10. The Tenants therefore find themselves in the middle of the fight between these two siblings. Their rights need to be protected as it is clear that their issue is not that they are not paying rent but rather that they are not paying rent to one of the contestants. This right of the Tenants can only be determined by a quick determination of who their Landlord is so that they clearly know where to pay their rent and forestall any adverse legal actions being taken against them.

11. I am in the circumstances convinced that justice will be better served by allowing the Applicant’s Application dated 30. 10. 2023.

Disposition 12. Following from the above observations, I do finally make the following orders;-a.That the Applicant Evanson Kamau Ngugi is added to these proceedings as an Interested party.b.That the Applicant Evanson Kamau Ngugi is to file his responses to the Application dated 23. 10. 2023 within seven (7) days of this Ruling.c.That the costs shall be in the cause.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 1ST DAY OF MARCH, 2024. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE MURIGIMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Mr. Gichara for the Applicant/Interested party and in the absence of the Landlord and CounselCourt: Mention on 07. 03. 2024. Mention notice to issueHON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE MURIGIMEMBERBUSINESS PREMISES RENT TRIBUNAL