[2022] KEBPRT 1095 (KLR)

Waigwa v Towett & another (Tribunal Case E035 of 2021) [2022] KEBPRT 1095 (KLR) (20 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 1095 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E035 of 2021

CN Mugambi, Chair

May 20, 2022

Between

Lilian Wambui Waigwa

Tenant

and

Judy Jepchirchir Towett

1st Landlord

Petroceli Lina Chepkemoi & Allexie Chebet Towett

2nd Landlord

Ruling

1. On 06. 01. 2022, the Tribunal ordered that the Applications dated 21. 04. 2021 and 18. 05. 2021 be heard together and a determination thereof be made at the same time.

2. The Tenant’s Application dated 21. 04. 2021 seeks the following orders;a.That the 2nd Respondents/Landlords and their agents, Gillette Traders Auctioneers be restrained from levying distress or from removing the distressed goods from the Tenant’s premises.b.That the 2nd Respondents/Landlords be prohibited from in any manner whatsoever and/or howsoever interfering with the Applicant’s quiet occupation and lawful enjoyment of the suit premises at plot No. 21/975 Nakuru Municipality pending the hearing of this case.c.That the Tenant is ordered to continue paying rent as usual to the 1st Respondent pending the hearing of this Application.d.That the OCS Central police station, Nakuru to assist in compliance of these court orders.

Depositions by the parties Depositions by the Tenant/Applicant 3. The supporting affidavit sworn by the Tenant/Applicant Lilian Wambui Wanjiku on 21. 04. 2021 may be summarized as hereunder;-

4. That she has been running Nomads Bar and Restaurant on the 1st Respondent’s premises Plot No. 21/975, Nakuru Municipality at agreed rent of Kshs. 15,000/= per month.

5. That the Tenant carried out renovations of the suit premises with the consent of the 1st Respondent at a cost of Kshs. 1,350,000/= which sum the 1st Respondent acknowledged.

6. That the Tenant has no Landlord/Tenant relationship with the Respondents who are step children of the 1st Respondent.

7. That the Respondents have unlawfully instructed Gillette Auctioneers to levy distress against the Tenant/Applicant on non-existent rent arrears.

8. That the Applicant has been paying her rent to the 1st Respondent and is not in any rent arrears as claimed by the 2nd Respondents.

Depositions by the 1st Respondent 9. The 1st Respondent’s replying affidavit may be summarized as hereunder;-

10. That the Applicant is her Tenant in Plot No. 21/975 Nakuru Municipality as per the agreement produced/exhibited in the Tenant’s affidavit.

11. That she is the owner of the suit premises by virtue of being one of the wives of the deceased William Towett Chepkwony.

12. That the Tenants have no legal capacity to demand for rent from the Applicant.

13. That the grant of letters of administration issued in favour of the respondents has been challenged by an Application for revocation of the said grant in Nakuru Chief Magistrate’s Court, Succession Cause No. 1 of 2017.

14. That the Applicant has no rent arrears since 2019 and she has been paying the rent directly to the 1st Respondent and the Tenant should continue paying rent to the 1st Respondent until the Succession Cause aforesaid is heard and determined.

Depositions by the 2nd Respondent 15. The Affidavit of Allexie Chebet Towett sworn on 14. 05. 2021 may be summarized as follows hereunder;-

16. That the Tenant’s Application is incompetent and unmeritorious, based on the wrong provisions of the Law and an abuse of the court process.

17. That the suit premises belongs to the Estate of his deceased father, William Chepkwony Towett who died on 25. 10. 2017.

18. That a grant of letters of administration to the Estate of the said deceased has been issued to him and his sister Petrocelli Lena Chepkemoi on 08. 07. 2019.

19. That all the properties of the deceased are therefore vested in the administrators of the Estate of the deceased.

20. That though there exists an Application for revocation of the grant in the Magistrates’ court at Nakuru, the grant confirmed in favour of the administrators has not been suspended.

21. That the Tribunal cannot confer title upon the 1st Respondent and declare her a Landlord when there are personal representatives of the Estate.

22. That the question of whether the 1st Respondent is a wife of the deceased or not is a matter before the Family court.

23. That the occupation of the premises subject of these proceedings by the Applicant amounts to intermeddling with the Estate contrary to Section 45 of Cap 160 Laws of Kenya.

24. That the reason the Respondents decided o levy distress against the Applicant is because the Applicant has n ever paid any rent to them and she continues with occupation of the premises without any permission and/or contract.

25. That there is no legal binding agreement between the 1st Respondent and the Applicant and the agreement between the two is an illegality which cannot be enforced as the 1st Respondent lacks capacity to contract as a Landlord; she is not the legal representative of the Estate of the deceased William Chepkwony Towett and cannot therefore rent out the premises.

26. That both the Applicant and the 1st Respondent are strangers to the suit premises.

The Landlord’s/Respondent’s Application dated 18. 05. 2021 27. On 22. 04. 2021, the Tribunal allowed the Tenants Application dated 21. 04. 2021 in terms of prayers 1, 3 and 4 thereof. The said orders in brief restrained the Respondents and their agents from levying distress against the Applicant and/or removing the proclaimed goods from the suit premises. The orders further directed the Tenant to continue paying rent as usual to the 1st Respondent.

28. By their Application dated 18. 05. 2021, the 2nd Respondent sought to stay the orders issued by the Tribunal on 27. 04. 2021 on the Application dated 21. 04. 2021. The Application also sought for review of the said orders pending the hearing and determination of the main Application in this cause (I take this to mean the Tenant’s Application dated 21. 04. 2021).Finally, the Application sought for an order that all the rent for the suit property premises be paid or deposited with the Tribunal pending the hearing and determination of the main cause lodged by the Tenant herein.

Depositions by Allexie Chebet Towett 29. The Application dated 18. 05. 2021 is supported by the Affidavit of Allexie Chebet Towett which is a replica of the replying affidavit sworn in response to the Tenant’s Application dated 21. 04. 2021 save for the following additional averments.

30. That on 27. 04. 2021, the Tribunal issued an order that the Tenant continues to pay rent for the suit premises to the 1st Respondent.

31. That unknown to the Tribunal, the suit premises formed part of the Estate of the deceased and to which a grant of letters of administration had issued to the Applicants herein.

32. That the Tenant deliberately failed to disclose to the Tribunal that the suit property was subject to an ongoing succession cause.

33. That on that basis, the Honourable Tribunal made a mistake in ordering that the rent for the suit premises be paid to the 1st Respondent who is a stranger with no legal mandate to receive rent on behalf of the Estate of the late William Chepkwony Towett.

34. That on account of the new evidence presented, the orders ought o be reviewed or set aside.

35. That rent for the suit premises ought to be remitted to the legal representatives of the Estate or to the Tribunal in the pendency of the dispute between the parties.

36. That upon determination of the dispute by the parties, the Tribunal shall determine who the lawful Landlord is and the rent deposited may then be released to him.

37. That no prejudice will be suffered by any of the parties if rent is deposited at the Tribunal.

38. There does not seem to be a response to the Respondent’s/Landlord’s Application dated 18. 05. 2021. But I will nonetheless continue to determine both Applications taking into account all the material placed before me.

39. In my humble view, the issues that arise for determination in both Applications are the following;-a.Whether the 2nd Respondent/Landlord and their agent, Gillette Traders Auctioneers should be restrained from levying distress or removing the proclaimed goods from the Tenant’s business premises or from in any manner interfering with the Tenant’s quiet possession and lawful enjoyment of the suit premises.b.Whether the Tenant should continue paying rent to the 1st Respondent pending the hearing and determination of this case.c.Whether the Tribunal should make an order that all the rent for the suit premises be paid and/or be deposited with the Tribunal pending the hearing and determination of the main cause lodged by the Tenant.

40. I have omitted to deal with the issue of whether or not stay of the orders of 27. 04. 2021 should be granted for the reason that the same were sought pending the hearing and determination of the Application.

41. I have also avoided the determination of whether or not the said orders should be reviewed, varied or set aside for the reason that those orders have been sought pending the hearing and determination of the main Application in this cause. I have elsewhere in this Ruling stated that the main Application referred to by the Applicants is the Tenants Application dated 21. 04. 2022. This Ruling deals with the said Application and the orders sought in the pendency of its determination are therefore spent.

Analysis and determination Issue No. A 42. The Tenant/Applicant has exhibited a lease agreement for the suit premises between her and the 1st Respondent. The 1st Respondent has confirmed that indeed the Tenant has been paying rent to her since 2019. I do note that the agreement is dated 01. 02. 2019 and the 1st Respondent confirms its existence. It is the Tenant’s evidence that she does not owe her “Landlord” any rent arrears and therefore the purported levy of distress for rent against her was illegal. At this stage, it is not disputable that the 1st Respondent has an interest in the estate of the deceased William Chepkwony Towett (hereinafter referred to as “the deceased”) and to which the suit premises forms a part. This interest is demonstrated all through the proceedings in Nakuru Chief Magistrates Court Succession Cause No. 1 of 2017 and which have been exhibited in this Application. The Application by the 1st Respondent to revoke the grant in that cause is still pending hearing and determination before the Chief Magistrates Court at Nakuru.

43. The Tenant is in occupation of the premises and has demonstrated in her affidavits that she has spent a substantial amount of money to renovate the same. The Respondents recognizing this fact of possession and occupation sought to levy distress against the Tenant. It is therefore a settled fact that indeed the Tenant/Applicant is in occupation.

44. The Tenant does not lay any claim to the Estate of the deceased or any part thereof. Her only interest is in her tenancy and in my view, it should not overly bother the Tenant who receives the rent from amongst the contestants over the spoils of the Estate of the deceased. It is my view that the Tenant has made a good case, a prima facie case against the Respondents to warrant the grant of the injunctive relief that she seeks. The Tenant having paid her rent to the 1st Respondent cannot be compelled to pay rent for the same premises a second time to the 2nd Respondents. Clearly, the issue as to who is entitled to the rent as between the Respondents has to be determined during the full hearing of the Complaint.

Issue No. B 45. It has been demonstrated by the Applicants in the Application dated 18. 05. 2022 and in their replying affidavit that they are the legal representatives of the Estate of the deceased William Chepkwony Towett. Whereas the 1st Respondent has challenged the grant issued in favour of the 2nd Respondents by applying for its revocation, no adverse orders have been made against the grant. The 1st Respondent not being an administrator of the Estate of the deceased and though she has demonstrated an interest in the said Estate cannot continue receiving rent for the suit premises.

Issue No. C 46. All parties to this dispute have established their interest in the suit premises; the Applicant as a Tenant who has been paying rent to the suit premises to the 1st Respondent and developed the same substantially, the 1st Respondent as a would be beneficiary to the Estate of the deceased and the 2nd Respondents as the legal administrators of the Estate of the deceased. In order to safeguard the interests of all the parties concerned, I will order that rent for the suit premises be paid into the Tribunal account pending the hearing of the Complaint. The payment to be effected from 01. 06. 2022. The parties will be at liberty to pursue accounts of the rent paid earlier to the 1st Respondent by the Tenant in the Succession Cause or at the determination of the Complaint filed herein.

Final disposition 47. In the final analysis and flowing from the above discussion, I do make the final orders in the following terms;-a.That the 2nd Respondents/Landlords and their agents Gillette Traders Auctioneers be and are hereby restrained from levying distress and/or removing the proclaimed goods from the Tenants business premises.b.That the 2nd Respondents/Landlords are restrained from in any manner whatsoever and/or howsoever interfering with the Applicants quiet occupation and lawful enjoyment of the suit premises at Plot No. 21/975 Nakuru Municipality pending the hearing and determination of the Complaint herein.c.That all the rent for the suit premises shall be deposited with the Tribunal pending the hearing and determination of the main cause (Complaint) lodged by the Tenant herein.d.That the payment of the rent into the Tribunal account shall be effected from 01. 06. 2022. e.That parties shall be at liberty to pursue accounts of rent paid earlier by the Tenant to the 1st Respondent in the Succession Cause or upon the determination of the Complaint filed herein by the Tenant.f.Each party shall bear its own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY, 2022HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Opar for the 1st Respondent and in the absence of the Applicant and the 2nd Respondents.Court: This matter will be mentioned on 28. 06. 2022 for further directions.