[2021] KEBPRT 426 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E013 OF 2021 (NAIROBI)

STANLOUS MUSAU MUTUKU...............................................................TENANT

VERSUS

ANN KARIUKI..........................................................................1ST RESPONDENT

MERCY KARIUKI...................................................................2ND RESPONDENT

AND

SUSAN GACHIJI.............................................LANDLADY/INTERESTED PARTY

RULING

The Tenant/Applicant’s notice of motion dated 15th April 2021 seeks the following prayers;

1. Spent.

2. That this honourable Tribunal be pleased to grant an injunction order restraining the Defendant/Respondent from in any manner interfering with the Plaintiff’s tenancy at the suit business premises located at Huruma Ngei One Aroma House Shop one pending the hearing of the application inter partes.

3. That prayer 2 above be granted pending the hearing and determination of this suit.

4. That the OCS John Saga Police Station do ensure compliance of these orders.

5. Costs.

The grounds upon which the application is brought may be summarized as follows;

1. That the Respondents who are previous Tenants in the suit premises are harassing the Applicant with an intention of evicting him without the consent of the Landlady.

2. That the Tenant’s rent is fully paid up to April 2021.

The application is supported by the affidavit of the Applicant which I summarize as follows;

1. That the Applicant occupied the demised premises then vacant through Mwanzo Properties, a Management Agent.

2. That the Applicant paid to the said agents a rent deposit of Kshs 20,000/- still being held by the agent.

3. That the Tenant has always paid his rent without any difficulties, rent is paid up to April 2021 and no rent is outstanding.

4. That the Respondents are also claiming to be Tenants on the same premises and are now harassing the Applicant based on that claim.

5. That the Applicant’s tenancy is a controlled tenancy.

The application is opposed. The Respondents have sworn an affidavit through Ann Kariuki the 1st Respondent herein. The same may be summarized as follows;

1. That the 2nd Respondent is her sister with whom they operate a joint business at Ngei One Aroma House Shop No. 1.

2. That the Respondents have an agreement between them and the “Seller”.

3. That the Applicant occupied the premises on a caretaker basis in 2017 with the permission of the Respondents.

4. That in December 2019, the Respondents demanded to take back the premises from the Tenant, the Tenant requested for time to vacate eventually promising to vacate by February 2021.

5. That on the basis of the Applicant’s promise to vacate the premises by February 2021, the Respondents paid the March 2021 rent (the payment receipt is annexed as X2).

6. That the Applicant has reported to the police the alleged attempts by the Respondent to kill him.

7. That instead of attending before the Chief for the arbitration of this dispute, the Applicant chose to come to the Tribunal.

8. That the Applicant and the Respondents have been communicating via mobile.

The issues for determination arising from the above summary and a careful perusal of the pleadings, in my view, are the following;

1. What is the nature of the relationship between the Applicant and the Respondents?

2. Does there exist a Landlord /Tenant relationship between the Applicant and the Respondents?

3. If there exists a Landlord /Tenant relationship between the parties, is the tenancy a controlled tenancy?

4. Is the Applicant entitled to the orders sought in his application dated 15th April 2021?

The Applicant has stated that he has been a Tenant in the suit premises since 2017 and has dutifully paid his rent up to April 2021. The application under consideration discloses one Susan Gachiji as the Landlady of the premises. None of the parties has expressly denied this to be so even as none has expressly described the Landlady in the body and content of their pleadings.

It is common ground between the Applicant and the Respondents that the Applicant took possession of the business premises in the year 2017. Both parties have different positions as to how the Applicant came to be in possession, the Applicant taking the position that he obtained tenancy from the former Property Managers/Management Agents of the Landlady. The Respondents on the other hand aver that they are the ones who allowed the Applicant to take possession in the year 2017 in a caretaker capacity as the Respondents attended to pressing family issues.

The Applicant regards the Respondents as intruders whose claim to the demised premises is the alleged status of former Tenants in the same premises (occupied by the Tenant/Applicant).

The Respondents regard the Applicant as a Caretaker who was to utilize the premises prior to handing it over to the Respondents. It is clear from the conflicting averments by the parties herein that none of them recognizes the other as a Tenant/Landlord. What comes out at this stage is more of a fight between two parties in contention as Tenants to the same property. It is not clear why the Applicant chose to sue the Respondents while he does not recognize them as his Landlords.

The Applicant has not established to whom he has paid rent up to the month of April 2021. Though he states the rent was paid, there is no evidence by way of receipts to evidence this payment. The Respondents on the other hand contend that they bought the business from the seller with goodwill. The agreement of sale annexed to the Respondent’s replying affidavit is one between Solomon and Mercy and Ann. It is for the sale of all the business located at “Huruma Ngei One Aroma House Shop One.”

The agreement written indicates that the seller, Solomon handed over the business upon execution of the sale agreement on 4th March 2015.

It is not clear at this juncture whether the Respondents upon purchase of the business from Solomon, they became owners of the business only, or owners of the business and the premises. It is not clear whether they were Tenants therein of the new Landlords. Taking account of the averments by the Respondents in regard to the Applicant, it is also not clear whether they handed over the premises to the Applicant as his Landlords and whether the Applicant accepted that positioning.

Whereas the Respondents state that they decided to pay rent for the month of March 2021, the annexed receipt is not clear as to whom the March rent was paid. Susan Gachiji who is indicated as the Landlady/Interested Party in this application has not filed any documents. Only her evidence would, assuming she is the Landlady, unlock this stalemate.

I am, in the circumstances of this case, unable to resolve the issues I had earlier framed without further evidence. In view of the undisputed fact that the Applicant is in possession of the demises premises, I will take the safer direction of maintaining the status quo pending the hearing of the reference orally in court. Only a full hearing would do justice to the parties herein.

Consequently, I order;

1. That the Respondents by themselves, their servants, employees and/or agents are restrained from evicting, intimidating or, harassing the Tenant/Applicant or in any other manner interfering with the Applicant’s tenancy at Huruma Ngei One Aroma House Shop One pending the hearing and determination of the Applicant’s reference dated 15th April 2021.

2. That the reference be fixed for hearing on a priority basis.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling dated and delivered virtually by Hon A. Muma this 9thday of July 2021 in the presence of Musau Mutuku (Tenant) and in the absence of Ann Kariuki (Landlord).

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL