[2021] KEBPRT 486 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 870 OF 2018 (NAIROBI)

THE RED APPLE LIMITED..................................TENANT/RESPONDENT

VERSUS

ISAAC GATHUNGU WANJOHI..........................LANDLORD/APPLICANT

ISABELLA NYAGUTHII WANJOHI...................LANDLORD/APPLICANT

IGAINYA LIMITED................................................LANDLORD/APPLICANT

RULING

PARTIES AND THEIR REPRESENTATIVE

1. The Tenant/ Applicant, The Red Apple Limited, rented space on LR. NO 209/674 TOM MBOYA STREET for the business (herein after referred to as the ‘Tenant’)

2. Learned Counsel Waiganjo Wachira & Co. Advocates represents the Tenant in this reference.

3. The Respondents Isaac Wanjohi, Isabella Wanjohi and Igainya Limited are landlords and owners of suit premises on LR. No 209/674 TOM MBOYA rented out to the tenant (herein after referred to as the ‘Landlord’).

4. Learned Counsel Mindo and & Co. Advocates represents the Respondents.

THE DISPUTE BACKGROUND

1. On or about 16th of October 2018 the Tenant filed a reference to this tribunal opposing a notice of termination under Section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301. The Said Notice was filed by the Landlords Lawyers and endorsed by all three of them. And the reason for termination was that eth Tenant has parted possession with and sublet many parts of the premises without the consent of the landlord which breaches the obligations under the tenancy.

2. The said notice was to run from 20th August 2018 to 1st November 2018 averagely 2 months 10 days.

3. Also accompanying the Tenancy Notice was a Notice of Motion application under certificate of urgency dated 22nd of August 2012 by the Tenant to restrain the landlord from any interference with their quite possession of the suit premises. And to pay monthly rent of 188,300/- to the tribunal the landlord having refused to receive the same. These complaints were accompanied by a Form C under Section 12(4) of Cap 301dated 22nd August 2019 and filed on 9th September 2019.

4. This Tribunal granted an order to restrain the landlord from any form of interference with the tenants quite possession on 10th September 2019 and the same is in force to date.

5. The landlords on the other hand filed an application dated 29th of July 2020 under certificate to strike out the reference dated 16th October 2018 together with any orders emanating from it which includes the restrain order above mentioned. The same was replied to by the tenant in an affidavit sworn by Abraham Mwangi on 28th January 2018 a director of the Tenant company.

6. A supplementary affidavit has been filed by the landlord’s lawyers Duncan Mindo to further buttress their application dated 29th July 2020 and respond to the supplementary affidavit.

7. The application coming up for ruling is therefore the Landlords application dated 29th July 2020 to strike out the tenant’s reference dated 16th October 2018.

JURISDICTION

1. The Jurisdiction of this tribunal is not in dispute.

THE CLAIM AND DEFENCE

1. The Landlords first claim in their application is that the tenant did not capture the right landlords in their pleading and as such they ought to be struck out. The Reference fails to state IGAINYA Limited as a landlord and only states Isaac G Wanjohi and Isabella N Wanjohi as the landlords.

2. Secondly that the reference was never served upon the landlord(s). They take issue with the Notice of Motion Application dated 22nd August 2019 since it only mentions IGAINYA Limited and as an upshot also take issue with the Orders of this court dated 10th September 2019 as they depart from the motion and mention the landlords as Isaac G Wanjohi and Isabella N. Wanjohi only.

3. The tenant on the other hand have filed a replying affidavit and annexed a letter to Mindo and Co. Advocates with a received stamp dated 22nd January 2019indicating to them that the Tenant has filed a reference to the landlords notice of 26th October 2018. In addition, they state that the Notice issued stated that it was issued by Isaac Gathugu Wanjohi and Isabella Nyaguthi Wanjohi on Behalf of Igainya Limited.

4. Parties filed written submission and on 30th April 2021 the matter was fixed for ruling on 21st May 2021.

5. I have had occasion to peruse the pleadings above mentioned of both the landlord and tenant and also the written submissions and I will not rehearse the same again as they are brief and to the point.

6. I will refer to them in my analysis below where relevant and I thank parties for the same.

MATTERS NOT IN DISPUTE

1. There is no dispute that there was a Tenant and Landlord relationship governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya. (Controlled Tenancy) and

LIST OF ISSUE FOR DETERMINATION

2. The parties raised certain issues for determination in their submissions and the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below:

a) Whether or not the Parties as captured by the pleadings present an irregularity warranting striking out of the reference?

b) Whether or not the Landlords were duly served with the reference?

c) Whether or not the said irregularities if found warrant striking out of the reference?

ANALYSIS AND FINDINGS

Whether or not the parties as captured by the pleadings present an irregularity warranting striking out of the reference?

1. The pleadings emanate from the Termination Notice in the standard form A under Section 4(2) I have perused the said Notice and find that it states Isaac Gathungu Wanjohi, Isabella Nyaguthii Wanjohi of Igainya Limited. I am persuaded by the tenant’s argument that the said description could lead to the use of Igainya Limited or Isaac and Isabella jointly and/or severally. As such I find no problem with the tenants Notice of Motion application and the orders emanating therefrom by this tribunal as drafted to warrant striking out of the reference.

Whether or not the landlords were duly served with the reference or orders?

2. Section 6(2) states that ‘A tribunal to which a reference is made shall, within seven days after the receipt thereof, given notice of such reference to the requesting party concerned’

3. An Order was issued by this court ex parte on 10th September, 2019 and from the court records on 19th October 2019 Mindo and Company Advocates entered appearance on behalf of the Landlords and wrote a letter on even date requesting for pleadings whilst stating the order dated 10th September 2019 was ‘dumped’/served in the offices of Isaac Gathungu Wanjohi. It appears service was effected.

4. It was not until 29th July 2020 almost 10 months that they moved this tribunal to strike out the reference and any consequential orders for want of service.

5. This tribunal finds this action on the part of counsel less than candid nothing would have been easier than to reply to the tenant’s application and dispose of the same and raise the said issues therein.

Whether or not the said irregularities if found warrant striking out of the reference?

6. I have considered all the matters raised herein above and I am reminded of the well settled principles of striking out as set out in the case of DT Dobie and Company vs Muchina (1982) KLR…No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment…this read together with Article 159 (2) of the Constitution 2010 lead me to the conclusion that the said irregularities do not warrant striking out the reference and I proceed to dismiss the Landlords striking out application dated 29th January 2020.

7. I also find the tenants have enjoyed ex parte orders for too long albeit with the blessing of the landlords I therefore order that the status quo will remain for a further 60 days to enable the tenants list their reference for hearing and final disposal and/or withdraw the same after which the said orders will stand spent.

8. On the issue of rent it appears from the proceedings of 6th January 2021 there is an agreement between parties on deposit of the same in the landlord’s advocate account and I need not address the same any aggrieved party can apply.

Who bears the costs?

9. Since both parties have been indolent in prosecuting this matter. Each party will bear their own costs.

ORDERS

For the reasons given above I ORDER as follows;

a) The Landlords Application dated 29th July 2021 is dismissed.

b) Parties to fix the reference for hearing in 60 days’ failure to which the reference stands dismissed and any consequential orders therefrom stands vacated.

c) Each party to bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated and delivered virtually by Hon Cyprian Mugambi Nguthari this 21st May 2021 in the presence of Mr Wachira for the Tenantand Mr Mindo for the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSSINESS PREMISES RENT TRIBUNAL