[2021] KEBPRT 425 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 82 OF 2021 (NAIROBI)

SAMUEL MBUGUA T/A

GUCHOKANIRIRIA KIHOTO TRADERS &FARMERS CO. LTD.......................TENANT

VERSUS

DORIS WANJIRU MAINA..................................................................................LANDLADY

DIGIT AUCTIONEERS..................................................................................AUCTIONEERS

RULING

The 1st Respondent’s notice of preliminary objection dated 15th March 2021 raises the following grounds;

1. That there is no such entity known as Samuel Mbugua T/A Guchokaniriria Kihoto Traders & Farmers Co. Ltd thus raising a serious matter of law which cannot be wished away or cured by mere assumption of what description the Tenant/Applicant intended to be identified as.

2. The tenancy agreement was made between Robert John Maina Myall and Gucokaniriria Kihoto Traders & Farmers Company Limited as a limited liability company and not with the Applicant, Samuel Mbugua in his individual capacity.

3. The Applicant, Samuel Mbugua lacks locus standi to sue on behalf of the company in his individual capacity while at the same time describing the Applicant as “Samuel Mbugua T/A Guchokaniriria Kihoto Traders & Farmers Co. Ltd.”

4. The Landlady/1st Respondent issued a Landlord’s notice to terminate or alter terms of tenancy dated 18th September 2020 directed to the company, Gucokaniriria Kihoto Traders & Farmers Company Limited in compliance with section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and which expired on 1st December 2020.

5. The said deponent of the supporting affidavit, Samuel Mbugua has confirmed in his affidavit sworn on 5th March 2021 that the Applicant is a limited liability company and thus he cannot sue in his own capacity allegedly T/A Guchokaniriria Kihoto Traders & Farmers Co. Ltd.

When this matter came up for hearing of the applications dated 5th March 2021 and 26th January 2021, the Tribunal issued the following directions in the presence of counsel for the Applicant and the 1st Respondent;

1. That the notice of preliminary objection would proceed by way of written submissions.

2. That parties had seven days apart to file and serve their written submissions.

3. That the Tenant’s representatives will be allowed into the premises for purposes ONLY of collecting its documents and thereafter the premises will be closed.

4. The matter would be mentioned on 18th May 2021.

As at the time of writing this ruling, only counsel for the 1st Respondent/Landlady had filed his submissions. I now proceed to summarize the said submissions which are to the effect;

1. That the company, Guchokaniriria Kihoto Traders and Farmers Co. Ltd and the 1st Respondent’s late husband Robert John Maina Myall executed a tenancy agreement dated 1st April 2011.

2. That this matter fails to legally exist as there is no such individual or entity known as Samuel Mbugua T/A Guchokaniriria Kihoto Trading and Farmers Co. Ltd rendering the pleadings fatally and incurably defective and as such, both applications by the Applicant should be dismissed.

3. That Samuel Mbugua has no locus standi and no authority to institute proceedings on behalf of Guchokaniriria Kihoto Traders & Farmers Co. Ltd.

The 1st Respondent’s preliminary objection can be broken down into two parts, namely;

1. Whether the description of Samuel Mbugua T/A Guchokaniriria Kihoto Traders & Farmers Ltd renders the suit by the Applicant herein defective on the basis that no such entity exists.

2. Whether the Landlord’s notice to terminate or alter terms of tenancy dated 18th September 2020 directed to Gucokaniriria Kihoto Traders and Farmers Co. Ltd expired on 1st December 2020.

I have noted from the affidavit of the 1st Respondent sworn on 23rd February 2021,that indeed a tenancy agreement was executed between one Robert Myall and Gucokaniriria Kihoto Traders and Farmers Co. Ltd. Samuel Mbugua was not one of the signatories of the said tenancy agreement. I also note that on 17th December 2018, a demand letter was written to the Managing Director of Guchokanirira Kihoto Traders and Farmers Co. Ltd (hereinafter referred to as the company in this ruling) demanding the payment of rent arrears in the sum of Kshs 960,000/-.

I further note that a Landlord’s notice to terminate or alter terms of tenancy dated 18th September 2020 was issued to the Chairman of the company by the 1st Respondent. The 1st Respondent’s letter demanding the payment of rent arrears (DWM 7) was responded to by one Samuel M. Njuguna by his letter of 18th February 2020,where he described himself as the Chairman of the company. It is important to note here that the notice to terminate tenancy dated 18th September 2020 was addressed to the Chairman of the Company.

In the supporting affidavit sworn by Samuel Mbugua on 26th January 2021, I do note;

1. That he describes the Applicant as a Limited Liability Company dully incorporated under the Laws of Kenya. The certificate of the Company’s incorporation has been exhibited.

2. That by a resolution of the Directors of the company (SM 2) the company appointed Samuel Mbugua to sue Doris Wanjiru Maina and Digit Auctioneers and any other persons on behalf of and for the protection of the company.

Following from the above, it is therefore clear that Samuel Mbugua has brought these proceedings pursuant to the resolutions of the company and on behalf of the company and the description part of the Applicant ought to be viewed in that light.

I have perused the pleadings and I do not understand Mr. Samuel Mbugua to be making any claims in his individual capacity. The name Guchokaniriria Kihoto Traders and Farmers Co. Ltd when viewed against the background of the company resolutions and the affidavit of Samuel Mbugua together with the notice of termination of tenancy dated 18th September 2020 leaves one with no doubt as to whom the Applicant in these proceedings is. It is the company.

The 1st Respondent does not challenge the company’s certificate of incorporation and further does not challenge the position of chairman of the company held by Samuel Mbugua. I am in the circumstances ready to hold, and do hold that the company is the Applicant in these proceedings and Samuel Mbugua is only acting pursuant to lawful resolutions of the company. The defence of the 1st Respondent is not likely to be embarrassed by the description of the Applicant and no prejudice at all will be suffered by the 1st Respondent as a result thereof.

This limb of the preliminary objection is dismissed.

The 1st Respondent has stated that the notice to terminate or alter terms of tenancy dated 18th September 2020 expired on 1st December 2020. From the outset, I do note that the 1st Respondent did not submit on this aspect of the preliminary objection. Other than restating the objection, no arguments were led in its support. The 1st Respondent’s affidavit does not exhibit any evidence of the service of the notice to terminate, I cannot for myself assume that the same was served upon the Tenant and I am therefore not in any position to state or determine when the same would have expired. Dwelling into his inquiry would require the tendering of evidence and would therefore remove this objection from the purview of what legally amounts to a preliminary objection.

I also note that the reference filed by the Tenant is not based on the notice to terminate tenancy but rather on the allegation that the Respondents have proclaimed and illegally broken into the premises on Saturday 23rd January 2021 and took everything without any reason in an attempt to evict the Tenant from the premises.

If the 1st Respondent wishes to pursue the notice to terminate dated 18th September 2020 to its logical conclusion, then she certainly cannot do so by way of a preliminary objection, a proper application to meet that end would suffice.

I again, in the circumstances do not find any merit in this limb of the notice of preliminary objection and I dismiss the same.

I direct that the applications dated 26th January 2021 and 5th March 2021 be fixed for hearing.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Gakuhi Chege this 18th day of June 2021 in the presence of Mr Koskey for the Landlady and Mr Odero for the Tenant.

HON GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL