[2021] KEBPRT 344 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 554 OF 2021 (NAIROBI)

NUNI GENERAL TRADING COMPANY LIMITED.................APPLICANT

VERSUS

LEONARD CHEGE & 29 OTHERS.......................................RESPONDENTS

RULING

1. By a motion dated 2nd June 2020, the Applicant, Nuni General Trading company Limited moved this Tribunal seeking for orders that the Respondents/Tenants handover vacant possession of the suit premises located at Plot no. L.R. 36/11/33, Eastleigh to it.

2. It further seeks that the order of vacant possession be enforced by the O.C.S Pangani Police Station for compliance.

3. The application is supported by the affidavit of Hussein Nuni, a director of the Applicant sworn on 2nd June 2020 in which he deposes that the Respondent (sic) is its tenant (sic) in the suit premises upon whom it served termination notices on 16th March 2020 which were to take effect on 1st June 2020 marked “HN1”.

4. According to the Applicant, the tenants did not file a reference as required by Law but have remained in possession without paying rent.

5. The application is opposed through a replying affidavit sworn on 10th July 2020 by one Leonard Chege on behalf of all the Respondents/Tenants wherein it is acknowledged that notice to terminate tenancy was served on 31st March 2020.

6. According to the Respondents, they got in touch with the family of the late David Mwau Ndolo to establish the true position regarding the termination notice and learnt that the suit property was managed by the administrators as well as the widow to the deceased as per the grant marked “A”.

7. A letter marked “B” dated 27th March 2020 was written to the Applicant by Matata R.M. & Company Advocates indicating that the family of David Mwau Ndolo had unanimously resolved and agreed by consent to revoke the handover of plot 36/11/33, Eastleigh with effect from 1st May 2020 stating that they would henceforth collect rent directly. They also cancelled any notices given to the tenants to vacate the said premises.

8. The said letter was copied to the tenants and F.M. Kimani & Co. Advocates as well as Biria & Sagana Advocates and to this Tribunal.

9. It is the Tenant’s case that since the Applicant does not own the premises and have no authority from the deceased Landlord’s family to deal with the suit premises, he has no locus standi to give notice to terminate tenancy or file suit against them.

10. They further state that since the agency relationship was terminated by the Landlord, the Applicant has no relationship with the tenants in respect of the suit premises.

11. The tenants contend that the Applicant is colluding with corrupt County officials who allege that the building is not fit for habitation due to poor sanitary conditions and the application before me is an abuse of court process.

12. I have also seen a replying affidavit by Lumumba Mwau Ndolo who is one of the administrators of the estate of Mwau Ndolo representing the house of Teresa Kindile Mwau together with one Joseph Ngui.

13. He deposes that the family of Veronica Mbulwa Mwau is represented by Yula Mwau and Beatrice Ndinda Mwau.

14. It is the case of the family that the suit premises was shared to the family of Teresia who unanimously handed over their premises to the 2nd Respondent in BPRT NO. 562 of 2020 to manage. The 2nd Respondent in the said case is the Applicant herein.

15. After obtaining limited grant of letters of administration, it is deposed that a meeting was held by members of Teresia Kindile family which also affirmed that the 2nd Respondent continues to manage the property in line with annexture “LMN-2”.

16. Sometimes on 27/7/2020, one of the family members who was not an administrator through R.M. Matata Advocates is said to have pretended to revoke the authority of the 2nd Respondent in managing the property without authority of the administrators and other members of the family.

17. Upon receipt of the said letter, the deponent states that he instructed P.M. Mutuku & Company Advocates to revoke the said letter. It is further stated that the other administrator one Joseph Ngui desires that the 2nd respondent continues to be the sole agent of the premises.

18. By a second motion dated 26th March 2021, the Applicant (Nuni General Trading Company Limited) applies that the rent deposited by the Respondents with the Tribunal be released to it.

19. The application is supported by the Applicant’s director’s affidavit sworn by Hussein Ibrahim on 26th March 2021 in which he states that on 25th June 2020, the tenants who were in arrears of rent were instructed to make payment to the Applicant as the agent of the Landlord or to the Tribunal.

20. Having failed to meet their obligation, the Applicant as the nominated agent had no alternative but to levy distress on behalf of the Landlord as a result of which the Respondents/Tenants filed Milimani CMCC No. E3878/2020 which was subsequently dismissed.

21. On 4th March 2021, the Applicant was directed to make a formal application for release of rent deposited in the Tribunal.

22. He has annexed to the application a certificate of confirmation of grant issued in Machakos High Court Succession Cause no. 32 of 2019, grant of letters of administration in the same case, lease over the suit premises between Joseph M. Ndolo, Lumumba Mwau Ndolo, Mary Yula Mwau and Beatrice Ndinda Mwau as administrators of the estate of David Ndolo Mwau on the one part as lessors and Nuni General Trading limited on the other part as lessee. The lease is dated 18th October 2019.

23. The application is opposed through the affidavit of Lumumba Mwau sworn on 22nd April 2021.

24. The said affidavit is expressed to be sworn on behalf of himself as an administrator of the estate of David Mwau Ndolo (deceased) and on behalf of other administrators and beneficiaries of the estate.

25. It is the deponent’s case that the suit property was distributed to the first household where he is a beneficiary by the Machakos High Court vide a certificate of confirmation of grant issued on 18th November 2020.

26. According to the deponent, the Applicant’s agency relationship was terminated through the family’s instructions to M/S. R.M. Matata Advocates vide a letter dated 27th March 2020 due to misappropriation of funds collected from the tenants.

27. According to the deponent, the lease relied upon by the Applicant is unknown to the family. The firm which allegedly drew the lease had also disowned the same through a letter dated 17th February 2020 wherein it is claimed that the said lease was fraudulently registered.

28. It is further deposed that the Applicant does not act on behalf of the family and he has no authority to make an application before this honorable court for release of funds on behalf of the Landlord.

29. The deceased family therefore objects to the release of funds to the Applicant.

30. The two applications were ordered to be canvassed through written submissions but only the Applicant’s counsel filed the same.

31. Having analysed the pleadings and the submissions, I am now called upon to determine the following issues:-

(a) Whether the application dated 2nd June 2020 ought to be granted or denied.

(b) Whether the application dated 26th March 2021 ought to be granted or denied.

(c) Who is liable to pay costs of the said application?.

32. I have looked at the evidence and documents presented before me and make the following findings:-

(i) The Applicant served notices of termination of tenancy upon the Tenants on grounds that it intended to carry out major renovation which cannot be carried out without obtaining vacant possession.

(ii) The family of late David Mwau through a letter dated 27th March 2020 written to the Applicant by Matata R.M. & Company Advocates revoked the agency of the said company and cancelled the termination notices issued to the tenants.

(iii) The said agency having been terminated, the Applicant lack capacity to institute the instant proceedings.

(iv) No evidence was tendered to show the nature of repairs intended to be carried out in respect of the premises to warrant vacant possession by the tenants.

(v) According to the certificate of confirmation of grant issued on 18th November 2020, the suit property was distributed to Joseph N.M. Ndolo & Lumumba Mwau Ndolo to hold in trust for the beneficiaries of the 1st household.

(vi) Lumumba Mwau in his affidavit of 22nd April 2021 has denied giving any authority to the Applicant to institute proceedings for release of funds or vacant possession against the tenants.

(vii) Lumumba Mwau confirms that the agency relationship with the Applicant was terminated through his family’s instructions to R.M. Matata Advocates vide a letter dated 27th March 2020.

(viii) The lease relied upon by the Applicant as the basis for termination of the tenancies of the Respondents and for requiring the funds held by the Tribunal to be released to it is disputed and I have seen a letter by the firm of Ochieng Achach & Kaino Advocates dated 17th February 2020 disowning the said lease.

(ix) The said advocates letter indicates that a complaint had been lodged with the DCI for investigation of the lease document.

(x) In view of all the foregoing findings, I make the following orders:-

(a) The applications dated 2nd June 2020 and 26th March 2021 are hereby dismissed with costs.

(b) The Respondents’ costs are assessed at Kshs.30,000/- against the Applicant all inclusive.

It is so ordered.

DATED, SIGNED and DELIVERED THIS 2ND DAY OF SEPTEMBER, 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

MS. Kiaritha for the Tenants

No appearance for the Applicant