[2025] KEBPRT 221 (KLR)

Njoroge & 10 others v General of the Salvation Army Kenya (Registered Trustees) & 2 others; Corps Council of the Nairobi Central Temple of the Salvation Army (Intended Interested Party) (Tribunal Case E964 of 2024) [2025] KEBPRT 221 (KLR) (4 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 221 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E964 of 2024

Gakuhi Chege, Chair & J Osodo, Member

April 4, 2025

Between

Grace Njeri Njoroge

1st Applicant

Josephine W. Wangui

2nd Applicant

Manassseh Lashighoni Mnaremanga

3rd Applicant

Millicent Wanjiru Githatu

4th Applicant

James Mwaura Ndung'u

5th Applicant

Ephantus Gikonyo Guthera

6th Applicant

Charity Waruguru

7th Applicant

Sarah W. Kamau

8th Applicant

Sharath Berakha

9th Applicant

Rosemary Kathambi

10th Applicant

Edward Nduati Njoroge t/a Edtel Odeal Tecchnology

11th Applicant

and

General of the Salvation Army Kenya (Registered Trustees)

1st Respondent

Picturesque Properties Limited

2nd Respondent

Funan Consolidated Company Ltd

3rd Respondent

and

Corps Council of the Nairobi Central Temple of the Salvation Army

Intended Interested Party

Ruling

A. Dispute Background 1. The intended interested party herein moved this Tribunal through an application dated 4th December 2024, seeking in material part for restraining orders against the 2nd and 3rd Respondents from interfering or in any way communicating or writing rent notices or demands to the tenants or entering or preventing them from accessing or managing the property situate on L.R NO. 709/1951 also known as Salvation Army Shopping Complex.

2. It is also seeking for an order directing all the tenants in the suit premises including the Applicants herein to deposit all the rent from 1st December 2024 with it or its advocates pending hearing of the case.

3. Thirdly, the intended interested party is seeking for an order to compel the 2nd and 3rd Respondents to provide accurate statements of account in respect of all rent deposits and goodwill received from 1st November 2023 to 30th November 2024.

4. The sixth prayer has already been rendered moot by the ruling of this Tribunal delivered on 11th December 2024 pursuant to which all the unpaid rent was directed to be deposited in the Tribunal’s account pending the hearing and determination of the Reference/Complaint.

5. The application is predicated upon the affidavit of Joshua Kioko and the grounds on the face thereof. The application was directed to be served for hearing and determination.

6. The affiant describes himself as the Corps Secretary of the Salvation Army, Nairobi Central Temple with authority to swear the affidavit. It is deposed that the intended interested party own and manage the Nairobi Central Temple and Shopping Complex for the benefit of the Church. It is deposed that the suit premises were constructed by Funan Construction Co. Ltd on “Build, Operate and Transfer” basis after 12 years and thereafter handover the facility to the Nairobi Central Temple for management. The said arrangement is said to have expired on 30th September 2023.

7. The application is opposed through the replying affidavit of Benjamin Ndiangui sworn on 19th February 2025 in his capacity as a director of the 3rd Respondent and the Principal Agent of the 2nd Respondent.

8. It is deposed that the 1st Respondent is the head lessor and the only registered trustee of L.R No. 209/1951, which hosts the Salvation Army Complex, and as such, Joshua Kioko who swore the affidavit in support of the application has no locus standi to represent the General of the Salvation Army or the Registered Trustees.

9. The 3rd Respondent was granted a lease by the 1st Respondent as the General of the Salvation Army (Registered Trustees) who is a party to this suit after expiry of the former lease which fact is not in dispute.

10. The intended interested party being a Church under the control of the General of the Salvation Army (Registered Trustees) Kenya has no capacity or locus to represent themselves in regard to properties owned by the 1st Respondent. As such, the application ought to be dismissed with costs.

11. We are therefore required to either allow or dismiss the application on the basis of the materials placed on record by both parties. We are also required to determine who is liable to pay costs thereof.

12. It is to be noted that the intended interested party is not a party to this suit and has not sought to be enjoined as such. It is therefore clear that the Applicant is a stranger to these proceedings and cannot seek for any reliefs herein.

13. Secondly, the Salvation Army Kenya (Registered Trustees) is well represented by the 1st Respondent and we do not see what interest the intended interested party is seeking to protect in the instant proceedings. He has not annexed the “Build, Operate and Transfer agreement” alluded to in the supporting affidavit neither has he annexed any authority by the General of the Salvation Army Kenya to represent him in the instant proceedings.

14. The term landlord is defined under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 as follows: -“landlord”, in relation to a tenancy, means the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy.”

15. The intended interested party has not demonstrated that it has a more superior interest in the suit property than that of the 1st Respondent herein. It does not claim to have entered into any landlord/tenant relationship with the tenants or the Respondents herein to warrant joinder as a party in the instant proceedings. The Applicant’s interest merges with that of the 1st Respondent and its inclusion in the instant proceedings will not add any value than to stir the pure streams of justice. The application is therefore a candidate for dismissal with costs.

16. Through an application dated 17th December 2024, the 1st Respondent moved this Tribunal seeking for striking out of its name from the instant proceedings. The application is supported by the affidavit of Lt Colonel David Musyoki sworn on even date and the grounds on the face thereof.

17. The 1st Respondent contends that it is not in direct or indirect control of the suit premises having leased it to the 3rd Respondent which is in charge of the management thereof.

18. The 1st Respondent further contends that it is not privy to any contracts alleged to exist between it and the Applicants herein and the orders sought herein do not involve it. It is the 1st Respondent’s case that it was struck out from the previous proceedings in BPRT NO. E070 OF 2024 as there was no established nexus between it and the tenants/applicants.

19. The application is supported by the 2nd and 3rd Respondents through a replying affidavit sworn on 19th February 2025 by Benjamin Ndiangui who deposes that the 1st Respondent is the head lessor in respect of the suit premises pursuant to a lease granted to the 3rd Respondent after the initial lease to the former lease holder expired. The premises are managed by the 3rd Respondent and the 1st Respondent has no relationship with the tenants.

20. It is the 2nd and 3rd Respondents’ position that the inclusion of the 1st Respondent is malicious and an abuse of court process to avoid payment of rent which they have succeeded to do for the last one year.

21. We are therefore required to determine whether to allow the application or not. We are also required to determine who is liable to pay costs thereof.

22. In our previous ruling delivered on 11th December 2024, at paragraphs 77 & 78, we held as follows: -“77. We are aware of the Respondents’ contention that the tenants have not been paying rent. The tenants on the other hand claim that they are not aware who is entitled to receive the said rent among the Respondents. The Respondents have not provided any rent account statements to show how much rent is claimed against the tenants. We shall therefore direct the tenants to henceforth deposit all the unpaid rent with the Tribunal awaiting determination of the Reference/Complaint.78. As regards the Reference/Complaint, the same shall proceed to hearing by way of viva voce evidence upon all the parties complying with Order 11 of the Civil Procedure Rules, 2010 by filing witnesses’ statements and documents in support of their respective cases.”

23. The foregoing finding is in tandem with the provisions of Order 1 Rule 7 of the Civil Procedure Rules which provides as follows: -“7. Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.”

24. Having held as above, and there being no appeal against the ruling, we decline to allow the application by the 1st Respondent. This is more so in view of our dismissal of the application by the intended interested party on the ground inter-alia that the Salvation Army Kenya is duly represented by him in the instant proceedings. The costs of the application shall be in the cause.

B. Orders 25. Given the above analysis, the following orders commend to us: -a.The intended interested party’s application dated 4th December 2024 is hereby dismissed with costs.b.The 1st Respondent’s application dated 17th December 2024 is hereby dismissed with costs in the cause.c.The matter shall proceed to hearing on priority basis between the original parties herein.d.The Respondents’ costs for the application dated 4th December 2024 are assessed at Kshs 15,000/= against the intended interested party herein.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4th DAY OF APRIL 2025HON. GAKUHI CHEGE - (PANEL CHAIRPERSON)HON JOYCE OSODO - (MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of: -Thuita for tenantsMiss Mwanzia h/b for Wambugu for the 1st RespondentMwangi for the 2nd & 3rd RespondentsKiarie Mungai for the intended interested party.