[2025] KEBPRT 155 (KLR)

Simu t/a Jacton Stores v Musyimi & 2 others (Tribunal Case E1280 of 2023) [2025] KEBPRT 155 (KLR) (Civ) (14 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 155 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E1280 of 2023

J Osodo, Chair & Gakuhi Chege, Member

March 14, 2025

Between

Anthony Simu T/A Jacton Stores

Tenant

and

Mary Munyiva Musyimi

1st Landlord

Joseph Mukolo

2nd Landlord

Nduva Mukolo

3rd Landlord

Ruling

A. Dispute Background 1. This matter was commenced vide a reference dated 20th December 2023 under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 with a complaint that the 1st respondent has illegally and unlawfully distressed for non-existent rent in order to coerce the tenant to execute a lease with her or to forcefully evict the tenant contrary to the law.

2. The tenant filed a notice of motion under a certificate of urgency dated 20th December 2023 seeking that the 1st respondent be restrained from selling the business stock belonging to the tenant, to return the said items, to restrain the 1st respondent from interfering with the tenant’s occupation of Plot No. 7 at Kathozweni, and that the 1st respondent be ordered to pay damages for the illegally distressed items.

3. The tenant then filed an application dated 4th January 2024 seeking that the 1st respondent be ordered to release the items distressed to the tenant.

4. Upon failure by the 1st respondent to comply with the court orders for the release of goods, the tenant filed a subsequent application dated 29th January 2024 seeking that the 1st respondent be committed to civil jail for contempt of the court orders and that the tenant be granted leave to claim for damages for all the goods distrained since the said goods had gone bad.

5. In a ruling dated 19th April 2024, orders were issued by this Tribunal and the said application was allowed. In addition, a warrant of arrest was issued against the 1st respondent who was presented before the Tribunal on 7th May 2024.

6. Orders were then issued that the tenant was to be paid a sum of KES. 128,120 which was the amount/value of goods illegally sold by Auctioneers.

7. The said amount was paid to the tenant and on 9th May 2024, the Tribunal directed the parties herein to file and exchange any claims for the value of the property seized and on the rent in arrears.

8. The 1st landlord filed a notice of motion dated 21st May 2024 in which she sought for the following orders; -i.That the court be pleased to compel the tenant to pay rent arrears of KES. 863,000 accrued since 2013 to date failure to which the landlord be at liberty to distress for rent.ii.That the 1st respondent be evicted from the suit premisesiii.That costs of the application be provided for.

9. The application is supported by an affidavit of even date in which the landlord deposes as follows; -i.That around 2012, the 1st landlord’s deceased husband entered into an agreement with one Mary Mumbua Nthusi for the sale of Plot 7A and that the consideration was to be paid gradually. A copy of the minutes dated 5. 3.2012 are annexed as “MMM-1”.ii.That immediately after the purchase, the deceased husband was granted vacant possession of the property.iii.That on 25th January 2013, the deceased husband entered into a tenancy agreement with the tenant herein where he was required to pay KES. 6,000 as monthly rent. A copy of the tenancy agreement dated 26th January 2013 is annexed as “MMM-2”.iv.That upon the demise of her husband, the 1st landlord entered into a sale agreement with one Mary Mumbua Nthusi on 10th December 2021 for the purchase of the suit property.v.That prior to execution of the sale agreement, one Mary Mumbua Nthusi had been allocated Plot number 7A which is evident from the certificate of confirmation of grant issued in Makueni Succession Cause Number 272 of 2016. A copy of the confirmation of grant is annexed as “MMM 4”.vi.That the 1st landlord is now the registered owner of Plot Number 7A/Kathonwezi. A copy of the official search is annexed as “MMM-5”.vii.That the said plot is a host to several shops where other tenants pay rent save for the applicant.viii.That as at the time of the application, the 1st landlord had changed the monthly rent to KES. 7,000. ix.That despite several demands written to the applicant demanding him to pay rent, he has declined to comply.x.That the tenant proceeded to file a case being Makueni ELC 40 of 2022 to restrain the 1st landlord from evicting him and levying distress.xi.That the said case was dismissed with costs.xii.That the tenant herein cannot purport to pay rent to the 2nd and 3rd landlords yet they have no ownership documents for the suit property.xiii.That if indeed the tenant cannot acknowledge the 1st respondent as the landlord, then he ought to be evicted from the suit premises.

10. The application is opposed vide a replying affidavit of the tenant dated 10th June 2024 in which he deposes as follows; -i.That the issues of ownership of plot 7A Kathonzweni raised in the application does not involve him as the tenant.ii.That the dispute of ownership arose when Mukolo Manyenze’s family went to the tenant claiming to be the owners of the suit premises. That in 2017, Mukolo Munyenze served a court order that restrained Peter Musyimi Nzyoka from trespassing into the suit premises. That was when Peter Musyimi Nzyoka directed the tenant to continue paying rent to Mukolo’s family and he continued to pay the same until the time of the illegal distress.iii.That the 1st landlord purports to have bought the suit premises through her late husband one Peter Musyimi Nzyoka but there is no agreement signed between him and Mary Mumbua Nthusi. That the agreement annexed to the supporting affidavit is dated 10th December 2021 indicating that it was signed 9 years after the alleged sale and no grant of Letters of Administration of the estate of Peter Musyimi Nzyoka has been attached to the application.iv.That the 1st landlord is not connected to the deceased and is not a truthful litigant and is trying to avoid compensating the tenant for the damages incurred during the unlawful distress for rent.v.That the information in her supporting affidavit differs with that of her replying affidavit sworn on 18th March 2024. vi.That the documents marked MMM-1, MMM-2, MMM-3 and MMM-5 were not available when the replying affidavit was being filed and must have been crafted quickly to defeat any claims for damages.vii.That the said Mary Mumbua Nthusi who allegedly sold the suit premises is not a party to these proceedings.

11. Based on all the materials on record and in particular, the dispute as to who is the proper landlord, and whether the tenant is entitled to compensation by the 1st respondent for wrongful attachment of his property, the matter was set down for viva voce hearing to enable cross-examination of witnesses.

12. Parties complied by filing witness statements which were adopted as evidence in chief by all the witnesses. We shall consider the witnesses’ statements as we deal with the issues for determination.

B. Issues for determination 13. The following are the issues for determination;a.Whether the landlord is entitled to the orders sought in the application dated 21st May 2024. b.Who is the proper landlord of the suit premises?c.Whether the tenant is entitled to the compensation of KES.1,832,890 by the 1st respondent for wrongful attachment of his property.d.Who shall bear the costs of the reference?

Issue (a) Whether the landlord is entitled to the orders sought in the application dated 21st May 2024. 14. The landlord filed an application seeking for orders that the tenant be compelled to pay rent arrears of KES. 863,000 accrued since 2013 to date and that the tenant be evicted from the suit premises.

15. The 1st Respondent in her affidavit claims to be the lawful landlord while the tenant disputes her claim of ownership and asserts that he has been paying rent to the alleged rightful owners, the 2nd and 3rd Respondents.

16. The rent arrears claim is disputed, as the Tenant states that he has been paying rent to the 2nd and 3rd Respondents since 2017 based on an existing court order restraining the 1st Respondent’s late husband from interfering with the property.

17. The ownership dispute between the Respondents cannot be resolved in this Tribunal as it lacks jurisdiction to handle issues of ownership.

18. The 1st Respondent has not demonstrated that she issued valid rent demand notices or any evidence of rent payment to her. We have perused the rent payment receipts attached to the tenant’s supporting affidavit dated 20th December 2023 and we find that the recipient is indicated as “Mukolo Manyenze”.

19. The act defines a landlord 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;”

20. As such, the Tribunal declines to grant an eviction order and rejects the claim for rent arrears, as the proper payee of rent remains the 2nd and 3rd respondents since there is no evidence of rent payment to the 1st respondent.

Issue (b) Who is the proper landlord of the suit premises? 21. As analyzed above and based on the facts presented in the matter, the Tribunal finds that the ownership dispute is a matter beyond its jurisdiction and should be addressed before the appropriate court.Issue (c) Whether the tenant is entitled to the compensation of KES.1,832,890 by the 1st respondent for wrongful attachment of his property.

22. According to the applicant’s witness statement dated 21st May 2024, it is clear that he has been a tenant in the suit premises at Kathonzweni since 2017, paying rent to the estate administrators. On 21st November 2022, the 1st respondent, unlawfully closed his business premises claiming rent arrears despite having no legal authority over the property.

23. Later, on 18th December 2023, the 1st respondent’s agents, Eastern Kenya Auctioneers, illegally seized the tenant’s goods and shut down his business without a court order. Despite reporting the matter to the police, he received no assistance. The tenant sought legal redress by filing an application in this Tribunal on 20th December 2023, obtaining an order restraining the 1st respondent from selling his goods or interfering with his premises, but she refused to comply.

24. Additional applications on 5th January, 16th January, and 29th January 2024 led to a ruling on 11th March 2024 affirming that the 1st respondent had disobeyed court orders and was liable for contempt

25. Following the said ruling, the tenant/applicant now seeks KES. 1,832,890 in damages, covering the value of the distrained goods, loss of business, legal expenses, and travel costs. His claim dated 21st May 2024 was submitted to this Tribunal.

26. In support of his case, the applicant/tenant submitted witnesses’ statements of Geoffrey Ndisya, Urbanus Kioko Musila and Joseph Mukolo who were all present at the hearing.

27. Geoffrey Ndisya, a businessman in Makueni County, states that he has been a long-time client of the tenant herein, sourcing cereals for institutional supplies. That due to the unlawful actions of the 1st respondent, the tenant’s business was disrupted, forcing him to seek supplies elsewhere, leading to financial losses.

28. Urbanus Kioko Musila, an employee of the tenant since 2019, confirms that the business was thriving until the 1st respondent began interfering, falsely claiming ownership and ultimately causing the shop’s closure. That on 18th December 2023, a group of strangers looted the store under the direction of the 1st respondent, leaving employees jobless.

29. Joseph Mukolo, a co-administrator of the estate that legally owns the property, affirms that the applicant was a rightful tenant who consistently paid rent. That he witnessed the 1st respondent illegally seizing the tenant’s goods, locking the premises, and falsely claiming to be the landlord.

30. All the three witnesses confirmed that the applicant/tenant was unlawfully evicted and deserved compensation.

31. The 1st respondent on the other hand, at the hearing of 6th November 2024 chose to rely on her supporting affidavit dated 31st May 2024 as her evidence in chief.

32. We have analyzed the said affidavit in which the 1st respondent has sworn that that she is the rightful owner of Plot 7A, which was initially acquired by her deceased husband in 2012 from Mary Mumbua Nthusi. She claims that her late husband was granted vacant possession of the property following the purchase, and this is supported by a certificate of grant issued in Makueni succession cause number 272 of 2016. She further states that she entered into a tenancy agreement with the tenant herein.

33. The allegations above were disputed by the tenant in his replying affidavit dated 10th June 2024 and the Tribunal has already established above that the 1st respondent is not the landlord as there is no evidence of rent payment to the 1st respondent. Furthermore, the issue of ownership of the suit premises is not within the jurisdiction of this Tribunal.

34. The 1st respondent also filed the witness statement by Agnes Wambua dated 1st October 2024 who was also present at the hearing.

35. Agnes Wambua adopted the statement as her evidence in chief and in summary, she states that she is an employee of Eastern Kenya Auctioneers, and that they were instructed by the 1st respondent to recover rent arrears of Kshs. 168,000 from the tenant. That they initially faced resistance from some people who attempted to obstruct the process, but later they managed to seize and sell the tenant’s goods to recover the outstanding rent.

36. The Tribunal is not inclined to grant the amount sought by the tenant for the value of distrained goods which has been estimated as KES. 1,197, 890 because the 1st respondent paid/compensated the tenant with a sum of KES. 128,120 which was the value of goods sold by the auctioneers as ordered by this Tribunal on 7th May 2024

37. Having established that the eviction was unlawful and resulted in financial loss to the tenant and based on his witness testimony and financial records, the Tribunal finds that the tenant is entitled to compensation for the loss of business Income sought at KES. 475,000.

Issue (d) Who shall bear the costs of the reference? 38. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of any suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. As the 1st Respondent acted unlawfully in distressing for rent and attempting to evict the tenant without due process, the Tribunal finds that the 1st respondent shall bear the costs of this reference.

C. Orders 39. In conclusion, the following final orders commend to us-a. The 1st Respondent’s application dated 21st May 2024 is dismissed.b. The Tribunal shall make no determination on ownership, as it does not have jurisdiction to do so and the parties are at liberty to pursue the same in the appropriate forum.c. The Tenant is awarded KES. 475,000 as compensation for loss of business due to wrongful attachment of property.d. The costs of this reference shall be borne by the 1st Respondent.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14th DAY of MARCH 2025. HON. JOYCE AKINYI OSODO(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE(PANEL MEMBER)In the presence of:Tenant present-in-personKithuka for the 1st Respondent