[2021] KEBPRT 316 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E332 OF 2021

SUCHA SINGH............................................................ LANDLORD/RESPONDENT

VERSUS

EVANGELICAL LUTHERAN CHURCH..........................TENANT/APPLICANT

RULING

PARTIES AND THEIR REPRESENTATIVES

1. The Applicant herein is the current occupant of the land LR No. 209/327/103 (hereinafter referred to as the ‘Suit Property’), purportedly owned by itself situate at Pangani Nairobi, within the Republic of Kenya.

2. The Applicant is represented by the Firm of Chacha Matiko & Company Advocates. Email:infokemwa@gmail.com

3. The Respondent is the alleged owner of the land LR No. 209/3271/103 desirous of the intervention of this Tribunal to order vacant possession to him by the Applicant.

4. The Respondent is represented by the Firm of Asembo & Company Advocates. Email: asemboasembo@gmail.com

DISPUTE BACKGROUND

5. Vide a Notice of Motion Application dated 2nd July 2021 the Applicant herein approached this Tribunal seeking inter alia, orders that the orders issued by this Tribunal on 22nd June 2021 be stayed and set aside pending the hearing and determination of this application inter partes and that the Respondent together with the OCS Pangani be restrained from interfering with the Applicant’s possession of the suit property.

THE APPLICANTS CASE

6. The Application is supported by the affidavit of Julius Osoro Mokua. He swore that the Applicant is a church and owner of the property known as LR No. 209/3271/103 in Pangani Area, Nairobi. He also swore that in the suit property, is a children’s home housing destitute children some of whom are school-going as part of the church’s charitable work.

7. Mr. Mokua further averred that on 2nd July 2021, strangers aided by the police descended on the suit property and attempting to illegally take possession on the strength of an order said to be issued by this Tribunal on 22nd June 2021. He further denied service of any documents in respect of the present matter and that the rubberstamp appearing in the Tribunal documents alleged to be from the Applicant is a forgery as it has never been referred to as Evangelical Lutheran Church.

8. He further averred that the Applicant which has at all material times been the owner and in possession of the suit property as seen in the produced title documents hasnever been a Tenant to the Respondent. He also swore to the danger of disruption of the Applicant’s activities and disposal of its property illegally if this Tribunal fails to intervene.

THE RESPONDENT’S CASE

9. The Respondent filed a Replying Affidavit sworn by Sucha Singh on 12th August 2021 stating that he has never dealt with the Applicant and that the only entity known to him is Evangelical Lutheran Church. He swore that the orders sought by the Applicant were baseless, undeserved and unmerited in totality. He further averred that vide a letter 7th July 2021his Advocates wrote to the Registrar of Societies in a bid to ascertain the status of the Applicant.

10. He averred that pursuant to the Registrar of Societies’ response vide a letter dated 3rd August 2021 the Applicant’s assertion that Julius Osoro Mokua was a trustee of the Applicant was controverted as the said letter confirmed the true trustees and officials of the Respondent’s proper Tenant-Evangelical Lutheran Church. He further swore that the Registrar of Societies’ letter issued earlier on 26th July 2021 confirms that the Applicant and the said Evangelical Lutheran Church are unrelated and are registered independently from each other.

11. He finally swore that the Applicant had no locus standi before this Tribunal in light of his cause of action.

SUBMISSIONS

12. The Application proceeded for hearing before this Tribunal virtually owing to the prevailing Covid-19 global pandemic. Parties were directed to file and serve written submissions in respect of the present Application for disposal of, which the Parties verily did. I shall proceed to consider the same.

APPLICANTS SUBMISSIONS

13. Counsel for Applicant filed his written submissions dated 18th August 2021. He submitted that the orders of 22nd June 2021 in which this Tribunal allowed for vacant possession of the suit property by the Respondent, were granted after a misrepresentation of the Respondent as the legal and beneficial owner and landlord of the suit property yet since there was no proof of the such claim. He further submitted that the Applicant has been in continuous and exclusive possession of and exercised all rights of an owner in the suit property and that it has never been the Respondent’s Tenant. He also submitted that the pleadings leading to the birth of the orders issued on 22nd June 2021 have never been served upon themselves and that the rubberstamp appearing on the pleadings does not belong to the Applicant.

14. Further, Counsel submitted that the Affidavit sworn by Mr. Julius Osoro Mokua on 2nd July 2021 was fit and proper as he did so in his capacity as a trustee and office bearer. He also submitted that the exhibit produced by the Respondent marked SS 3 confirmed the existence of Evangelical Lutheran Church in Kenya and not Evangelical Lutheran Church and that the two entities could not be assumed to be the same. Counsel further submitted that in view of the fact that the Notice to Terminate Tenancy dated 28th February 2021 purportedly served by the Respondent as an alleged Landlord was addressed to Evangelical Lutheran Church of postal address 54128-00200 Nairobi which address has been consistently used by the Respondent in reference to the Applicant in land rate demand notes, letters to Registrar of Societies was in fact a confirmation that the entity sued by the Respondent was Kenya Evangelical Lutheran Church in Kenya. He added that if the Respondent insisted that it sued Evangelical Lutheran Church in Kenya which has never related to the suit property was something to worry about.

15. Additionally, the Learned Counsel also submitted that on 7th July 2021 the Applicant conducted a search at the Lands office which confirmed registration status as of 5th February 1974 with Evangelical Lutheran Church in Tanzania (Kenya Synod) had not changed and therefore the Respondent’s claim to be the legal and beneficial owner of the suit property was unfounded. Further, that the evidence in the Applicant’s supplementary affidavit sworn on 18th August 2021 by Julius Osoro Mokua indicated that from 1974 to date the Applicant, previously known as Evangelical Lutheran Church Tanzania (Kenya Synod) have been in continuous and exclusive possession of the suit property and exercised all rights of an owner over it.

16. Moreover, Counsel submitted that at all material times the Applicant received and paid land rates for the suit property. He also submitted that proof of existence of a children home in the suit property was evidenced by copies of certificate of registration, inspection report and local authority integrated applications management system bills produced in this Tribunal. On the question of service, Counsel maintained that although the physical address used in the Notice and pleadings, they were not served as the person who allegedly received the document is unknown to it and is not an employee of the Applicant if checked among the list of the Applicant’s employees. He submitted that the rubber stamp in the pleadings does not belong to the Applicant.

17. On the question whether a church is a legal entity that may be sued, Counsel submitted that the church is not a legal entity to be sued but the Trustees are supposed to be sued instead. He maintained that had the Respondent sued the Trustees, the confusion created and exploited by the Respondent as to the Applicant’s identity could not have arisen. He cited The Trustees Kenya Redeemed Church Bishop Allan Njeru vs Samuel M’Obuya Morara & 5 Others and Muchonjo Marugu vs Nguthiru PCEA Church to buttress this position.

18. Counsel finally submitted that on the basis of evidence it provided, the Tribunal had no jurisdiction to hear and determine the matter having established that there was no Landlord/Tenant relationship between the parties. He further submitted that a dispute on the ownership of the suit property if any, ought to have been raised with the Environment and Land Court, not in the Tribunal.

19. Counsel urged this Tribunal to dismiss the allow its Application and strike out the Respondent’s matter in entirety.

THE RESPONDENTS’ SUBMISSIONS

20. Mr. Asembo, appearing on record for the Respondent also filed written submissions dated 16th August 2021. He submitted that the Applicant was a stranger to the present suit and therefore had no locus standi in the cause of action. He maintained that the Respondent sued and remains with a cause of action against a separate, independent and well-known entity being the Lutheran Evangelical Church.

21. Counsel further submitted inter alia, that the Respondent does not know the Applicant and the latter has no relations with Evangelical Lutheran Church against whom it filed a reference, that there was no genuine or substantial dispute between the Applicant and the Respondent on the suit property it is claiming. He also submitted that the Applicant wrongfully presumed that it was sued without demonstrating any grounds as to its bonafide claim of right or interest.

22. The Learned Counsel urged this Tribunal to find that the Applicant had no locus standi before this Tribunal and subsequently dismiss the Applicant’s Application.

ANALYSIS AND DETERMINATION

23. I have given full consideration to the Applicant’s Notice of Motion Application, the rival affidavits, submissions, and the authorities cited.

24. In my respectful view, I find that the issue that falls for determination is:

a) Does the Respondent have locus in this matter?

25. At the heart of this case is the issue of locus I am presented with SIX different entities in the various applications and correspondences in this matters these being

a) Evangelical Lutheran Church cited as the Respondent in the main reference,

b) Kenya Evangelical Lutheran Church KELC the applicant in application dated 2nd July 2021 purporting to be wrongly sued.

c) The Registered Trustees of the Evangelical Lutheran Church in Tanzania as appears in the Certificate of Title LR. No. 209/3271/103.

d) The Registered Trustees of the Kenya Evangelical Lutheran Church.

e) Evangelical Lutheran Church in Tanzania (Kenya Synod) as appears in some correspondences.

f) Evangelical Lutheran Church in Kenya.

26. It is not in contention that Suchi Singh was at some point an owner and or landlord of this parcel of land where the suit premises is situate what is in contention is whether he is still owner and or landlord to the church and if so which church.

27. Suchi Singh has indeed moved this tribunal as the Landlord of a verbal tenancy agreement as against Evangelical Lutheran Church. Appearance has been entered by Kenya Evangelical Lutheran Church KELC instead of Evangelical Lutheran Church with the explanation that they and The trustees of Evangelical Lutheran Church in Tanzania who are claiming ownership of the suit property and has produced a title to that effect are one and the same person.

28. This tribunal has indeed taken time to look amongst the several documents produced by the respondent applicant for evidence to support this averment, the closest is JOM 5 which is a letter to the Secretary Evangelical Lutheran Church in Tanzania Kenya Synod accepting the change of name signed by the Registrar of society on 17th October, 1991 and annexing a certificate in the new name. The said certificate has not been attached. In addition, JOM 4 is a certificate of exemption from registration which states at the bottom that Evangelical Lutheran Church in Tanzania Kenya Synod formerly known as Kenya Evangelical Lutheran Church and dated 3rd July, 1968.

29. It appears therefore that Kenya Evangelical Lutheran Church changed to Evangelical Lutheran Church in Tanzania Kenya Synod before 1968 it is not clear from the foregoing which name it changed to thereafter in 1991 because the annexure provided citing change of name is incomplete as it lacks the enclosure mentioned. This document would have shed some light.

30. Be as it may in 1974 there was a transfer transaction recorded in the title at the lands registry entry No. 10 which appears to transfer title to the Registered Trustees of the Evangelical Lutheran Church in Tanzania. This entity does not seem the same as the Kenya Evangelical Lutheran Church or Evangelical Lutheran Church Kenya Synod as it is t registered under the Trustees (Perpetual Succession) Act Cap 164.

31. Produced and shown to me is a certificate of registration of The Registered Trustees of Kenya Evangelical Lutheran Church. Registered on 16th January 2015 JOM 1. Another entity which also exists is the Kenya Evangelical Lutheran Church registered under the societies Act JOM 2 and SS4. With Julius Osoro Mokua as the treasurer whose name also appears as a trustee in The Registered Trustees of Kenya Evangelical Lutheran Church JOM 1, together with Luke one Mwololo evidencing the existence of a relationship between the two entities.

32. I am clear in my mind that the intended applicant indeed exists what I cannot confirm is whether she is one and the same person with the Registered Trustees of the Evangelical Lutheran Church in Tanzania.

33. All these documents have been produced by the church with the expectation that they will discharge their burden of proof as expected by theEvidence Act Sec 109. Albeit to proof ownership and disapprove a landlord tenant relationship. I remain in doubt in a play published by the English dramatist George Chapman in 1654 a popular phrase was coined that the law is an ass that seems to be the situation the applicant finds itself

34. The Tribunal finds that the applicant lacks locus and the lack of locus standi can dispose of the matter preliminarily without having to resort to ascertaining of facts. What is clear is that they are in the premises as they were served and they have entered appearance herein any claims of ownership are indeed not within the jurisdiction of this court and they ought to move the right forum.

DETERMINATION

35. The upshot is that the application dated 2nd July 2021 lacks a legal leg to stand upon and must therefore fall together with any consequential orders arising there from. The application dated 2nd June 2021 remains unopposed and is upheld in terms of prayers 2 and 3. There shall be no orders as to costs. The reference dated 28th February 2021 appears spent but parties are free to set it down for hearing in 60 days if they so wish.

HON. ANDREW MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered this 26thday of August 2021 in the presence of the Landlord.

HON. ANDREW MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL