[2022] KEBPRT 101 (KLR)
The Tribunal found that the issues raised by the tenants had already been conclusively determined in ELC No 322 of 2018, where the High Court held that rent should be paid to the duly appointed administratrix of the estate. The Tribunal held that it could not issue orders contrary to the High Court's decision and...
Source-derived case information.
- Citation
- [2022] KEBPRT 101 (KLR)
- Parties
- Applicant: Samuel Kigathi Gachara; Applicant: Peter Mungai Gathumbi; Respondent: Joan Njoki Ndungi (Sued as the legal representative of the Estate of James Samuel Gichuru, Deceased)
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E574 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion Application
- Outcome
- application dismissed with costs
- Legal Topics
- Landlord Tenant Disputes, Rent Arrears, Res Judicata, Succession Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kigathi Gachara
Applicant
Peter Mungai Gathumbi
Applicant
Joan Njoki Ndungi (Sued as the legal representative of the Estate of James Samuel Gichuru, Deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion Application
Legal Issues
- 1 Whether the Tribunal can issue orders contrary to a previous High Court decision regarding rent payment to the estate administrator.
- 2 Whether the matter is res judicata in light of ELC No 322 of 2018.
- 3 Whether the landlord is entitled to increase rent from Kshs 320,000 to Kshs 360,000 without leave of the Tribunal.
Ratio Decidendi
The Tribunal found that the issues raised by the tenants had already been conclusively determined in ELC No 322 of 2018, where the High Court held that rent should be paid to the duly appointed administratrix of the estate. The Tribunal held that it could not issue orders contrary to the High Court's decision and that the matter was res judicata. The Tribunal further held that any increase in rent could only be effected with its leave, and therefore the rent would remain at Kshs 320,000 per month. The application and reference by the tenants were dismissed with costs, and funds held by the Tribunal were ordered to be released to the landlord, who was also granted liberty to levy distress...
Court Disposition
application dismissed with costs
Orders
- The application and reference are dismissed with costs.
- Funds held by the Tribunal to be released to the landlord.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO. E574 OF 2021 (NAIROBI)
SAMUEL KIGATHI GACHARA........................................................................TENANT
PETER MUNGAI GATHUMBI...........................................................................TENANT
AND
JOAN NJOKI NDUNGI (Sued as the legal representative of the
Estate ofJAMES SAMUEL GICHURU (Deceased)......................................LANDLORD
RULING
1. This Tribunal was moved on 12th October 2021 by a notice of motion application under certificate of urgency by the Tenants Samuel Gachara and Peter Gathumbi. They sought protection claiming that the Landlord was interfering with their business and threatening to levy distress which protection they got via orders of 13th October 2021.
2. The dispute arises from a disputed succession cause. The Tenants are caught in between a family row. They have always had a lease with the administrators of the estate of Gathumbi Komu. Initially, the paid rent to John Gitau Gichuru and upon his demise rent was paid to Phylis Mukami Gitau. Upon her demise the children of John Gitau Gichuru could not agree on who was to be paid rent. Monthly rent is Kshs 320,000/- and the Respondent herein is demanding Kshs 360,000/- per month.
3. I have taken the liberty to peruse the documents filed and the submissions and particularly ELC No 322 of 2018 which was between Peter Gathumbi, Peter Mungai and James Njenga Vs Joan Njoki Ndungi and Persia Muthoni Masinde (Interested Party) all suing as administrators of the estate of Gathumbi Komu, James Samuel Gichuru and John Gitau Gichuru respectively.
4. In my view, the ruling dealt with the issue before me and I need not revisit the same particularly from page 16 onwards. It reads in part;
“The Plaintiff and the Tenants on the suit property being aware that the Defendant was the duly appointed administratix of the estate of the deceased had a duty to pay rent due to the estate to her in that capacity. It was up to the Defendant to account to the Interested Party as a beneficiary of the estate for such rent..”
5. I need not say more. I find this matter to be res judicata and should not be before us to issue orders contrary to the High Court. An appeal review of the order would be most appropriate.
6. I therefore find the application and reference lacks merit and dismiss the same with costs.
7. Funds held by the Tribunal be and is hereby released to the Landlord who is at liberty to distress for rent in case there is any arrears.
8. The rent increament can only be done with leave of this Tribunal and as such, the rent will stay at Kshs 320,000/- per month.
HON A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 20TH DAY OF JANUARY, 2022 in the presence of Ngaruiyafor theTenantsand in the absence of the Landlord.
HON A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL