[2021] KEBPRT 143 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E338 OF 2021 (NAIROBI)

PAUL MUHORO............……….….……….....……………………….…...1ST APPLICANT

DAVID NDUNGU……………………………….…………………….…..2ND APPLICANT

ROBERT MWERI……………………………………………………....…3RD APPLICANT

SALOME WAIRIGU…………………………………………………...….4TH APPLICANT

FRANCIS GICHURU……………………………………………….……..5TH APPLICANT

PAUL KIWARA NJUGUNA……………………………………………...6TH APPLICANT

VERSUS

ANN NJERI MUBUGA…..……............................................................ 1ST RESPONDENT

JOHN GITARI NDAMBIRI……………………………..…………… 2ND RESPONDENT

RULING

1. Before me is a motion dated 22nd July 2021 by which the Applicants sought for 7 reliefs. Prayers 1,2 and 3 were granted at the ex-parte stage and what remains for consideration is prayers 4,5,6 and 7.

2. In prayer 4, the Applicants are seeking for an order that they be allowed to deposit rent at the Tribunal pending hearing and determination of the application. The same prayer is repeated under prayer 6 pending hearing and determination of ELC Case No. 853 of 2021(O.S.) relating to ownership of the suit parcel of land.

3. Prayer 5 is seeking for restraining orders against the Respondents from interfering with the Applicants quiet occupation and peaceful enjoyment of the suit premises pending hearing and determination of this suit.

4. Prayer 6 is for costs of the application to be provided for.

5. The application is supported by the affidavit of the 1st Applicant sworn on 22nd July 2021 and the grounds on the face of the application.

6. The suit premises are located on L.R. No. Dagoretti/Mutuini/917 which is claimed by both Respondents vide ELC No. 853 of 2021 in Milimani Nairobi.

7. The Applicants entered into a tenancy agreement with the 1st Respondent to whom they have been paying rent for many years.

8. The 2nd Respondent ordered the tenants to be paying rent to him and made them enter into and sign new tenancy agreements with him without giving back copies thereof to the latter.

9. This turn of events created confusion to the tenants as to whom rent was payable after the 1st Respondent issued them with notices of termination of tenancy on grounds of non-payment of rent.

10. On the other hand, the 2nd Respondent also issued notices to terminate tenancy against the tenants if rent was not paid to him. It is therefore not clear to the tenants who they are supposed to pay rent between the two Respondents.

11. The tenancies being protected under Cap. 301, Laws of Kenya, the Applicants decided to approach this Tribunal for the various reliefs set out above.

12. The 1st Respondent filed a replying affidavit sworn on 4th August 2021 in opposition to the application wherein it is deposed that her relationship with the Applicants begun 14 years ago and it was only recently when the 2nd Respondent started interfering with the tenancy agreement.

13. She confirms that the issue of ownership of L.R. NO. Dagoretti/Mutuni/914 has been in contention between her and the 2nd Respondent in ELC NO. 853 OF 2021 (O.S.) in which she was the plaintiff. She obtained an order on 31st August 2017 inhibiting dealings or further registration of entries in the register of the said land parcel by the defendants. Among the defendants is the 2nd Respondent who is the 2nd defendant therein.

14. Until June 2021, the Applicants were paying their monthly rent to the 1st Applicant. After death of David Gathaiya (1st Defendant in the ELC case), the 2nd Respondent herein started threatening, harassing and bullying the tenants by demanding payment of rent to him.

15. Some of the tenants went ahead and entered into tenancy agreements with the 2nd Respondent. The 2nd Respondent also served notice of failure to pay rent.

16. The 1st Respondent filed Nairobi BPRT No. E210 of 2021 wherein Hon. A. Muma, Vice Chair ordered on 7th July 2021 as follows:-

“1. The matter and any consequential orders and notices emanating from BPRT issued be stayed in light of orders of Lady Justice Gacheru of 31/8/2017 in ELC No. 853 of 2012 (O.S)”

17. The said order was served upon the Applicants to assuage their fears of eviction if they failed to enter into tenancy agreements as demanded by the 2nd Respondent. The 2nd Respondent was equally served with the order.

18. In view of the orders issued in the said case and the ELC matter, it is the 1st Respondent’s contention that the Applicants should continue paying rent to her.

19. The 1st Respondent deposes that she continues to incur financial loss and was struggling to meet her needs being an aged widow since she solely on the income generated from the property to sustain herself.

20. I have seen an affidavit purportedly sworn by one Geoffrey Mukinga Mbuku on 10th August 2021 in the Jurat whereas the deponent on the first page is indicated to be the 2nd Respondent. The said affidavit is defective and is hereby struck out from the record.

21. The 1st Applicant filed a supplementary affidavit sworn on 3rd September 2021 wherein he deposes that the orders issued in ELC and BPRT cases between the Respondents do not address the status quo and their fate in view of their competing claims. This is moreso on the question of who should be paid rent.

22. According to the Applicants, the issue relating to their tenancy in the suit premises has not been addressed in any forum as none of the orders is directed against them. Indeed, they are not parties to the said suits. It is thus the Applicants’ case that they should be protected by this Tribunal.

23. The matter was directed to be disposed of by way of written submissions but only the Tenants and 1st Respondent complied.

24. The issues for determination herein are:-

(a) Whether this Tribunal has jurisdiction to adjudicate over the dispute.

(b) Whether the Tenants are entitled to the orders sought herein.

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

25. I have looked at the pleadings and submissions filed by the parties except the replying affidavit which I have already ordered struck out.

26. I note that the issues raised by the Applicants have not been adjudicated upon in any previous proceedings. Indeed, the Applicants are not parties to the ELC or BPRT cases litigated by the Respondents over the suit property.

27. I have not seen any order staying proceedings between the Applicants and the Respondents in regard to the controlled tenancies entered into with the 1st Respondent.

28. For a period of over 14 years, the Applicants have been paying rent to the 1st Respondent. No order of injunction have been issued by the ELC stopping the 1st Respondent from dealing with the suit premises or collecting rent from the Applicants.

29. I find and hold that the pendency of proceedings in the Environment and Land Court on the question of ownership of the land where the suit premises are situate does not oust jurisdiction of this Tribunal in absence of an order for stay of proceedings. I am fortified in that regard by the decision in the case of Bacnelor’s Bakery Ltd – vs- Westlands Securities Ltd (1982) eKLR at pages 3-4/6 where the Court of Appeal held as follows:-

“The Act is legislation of a special nature enacted solely for the protection of tenants. It allows the parties a choice of occupation of premises under a controlled or uncontrolled tenancy, in the first case, within the ambit of the Act. In the instances to which the provisions of the Act are declared to apply, it overrides any other written law which is in conflict with its provisions”.

30. Having already found that the tenancy between the Applicants and the 1st Respondent is controlled, the same is protected under Cap. 301 Laws of Kenya and cannot be terminated by a third party as the 2nd Respondent purported to do.

31. In considering the kind of application that is before me, the issue of ownership of land whereon the suit premises is built is not a factor as even a tenant can be a landlord of a subtenant under Cap. 301, Laws of Kenya.

32. It is not disputed that the Applicants have been getting conflicting instructions on payment of rent and have oven been threatened with eviction by the Respondents in the process of the latter asserting ownership rights over the property. The tenants being lost on who to pay rent had no alternative than to approach this Tribunal for protection.

33. I therefore find and hold that the Applicants are properly before this Tribunal.

34. As to whether they are entitled to the reliefs sought in the application, find that they are entitled to prayers 5 and 7 thereof in line with the decision in the Locus Classicus case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358 on all the three principles for reasons already given above.

35. In regard to prayer 6 of the application, I am not convinced that rent should be deposited with the Tribunal since the Applicants’ relationship with the 1st Respondent has not been terminated. There is no evidence before me that he Applicants have any landlord/tenant relationship with the 2nd Respondent. It was not lawful for the 2nd Respondent to attempt entering into fresh tenancy agreements with the Applicants whereas their relationship with the 1st Respondent was still subsisting. The 1st Respondent is entitled to rent payable.

36. In the premises, the following orders commend to me:-

(a) The application dated 22nd July 2021 is granted in terms of prayer 5 thereof.

(b) The Applicants/Tenants shall continue paying rent in respect of the suit premises to the 1st Respondent pending hearing and determination of this case.

(c) Cost of the application are hereby granted to the Applicants against the 2nd Respondent.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED THIS 5TH DAY OF NOVEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Otieno for the 1st Respondent

Miss Kamotho holding brief for Miss Kihika for Tenants/Applicants