[2022] KEBPRT 809 (KLR)

Wangondu v Oloo & 3 others (Tribunal Case E539 of 2022) [2022] KEBPRT 809 (KLR) (31 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 809 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E539 of 2022

Gakuhi Chege, Vice Chair

October 31, 2022

Between

John Maina Wangondu

Applicant

and

Christopher Obiero Oloo

1st Respondent

Boniface Mosoti Tuti

2nd Respondent

Isaac Muremi

3rd Respondent

Benjamin Mwangi t/a CDF Office

4th Respondent

Ruling

1. The instant dispute relates to a business premises situate on L R No 1139/3, Kiambu Dandora Farmers Co. Ltd whereon the tenant operates a car wash.

2. It is the Applicant’s case that the said business premises was owned by his late mother one Alice Muthoni Wangondu who died on April 3,2021 whilst the landlord of the tenant as per the tenancy agreement entered into on August 18, 2020 attached to the affidavit in support of the application dated June 23, 2022.

3. Upon death of the original landlord, the tenant is accused of failing to pay his monthly rent of Kshs.10,000/- and went ahead to forge documents to show that he had bought the business from the deceased landlord.

4. The applicant moved this Tribunal against the said background seeking for an order of delivery of vacant possession and payment of rent arrears vide a motion dated June 23, 2022. He also seeks for an order to levy distress against the tenant to recover outstanding rent arrears.

5. On the other hand, the 1st Respondent through a replying affidavit sworn on August 30, 2022 contends that the application is incompetent and bad in law as the applicant has no actionable interest in the suit property and has come to court with unclean hands coupled with concealment of material facts.

6. The 1st Respondent deposes that the applicant has not established ownership of the suit land and cannot claim rent over property that does not belong to him. The suit property belonged to the applicant’s mother before it was sold to him.

7. The 1st Respondent deposes that the suit property was sold to him more than three years ago for valuable consideration as evidenced by annexure ‘COO1’. He deposes that the applicant’s mother fell sick and required treatment and therefore approached him with an offer to sell the suit property in order to raise money for treatment.

8. Pursuant to the sale agreement marked ‘COO1’ he paid Kshs 150,000/- and the balance of Kshs 50,000/- was payable in monthly instalments of Kshs.10,000/- until full payment. He occupied the premises thereafter until when the applicant’s mother passed away.

9. It is the 1st Respondent’s contention that the applicant lacks standing as he has not taken out letters of administration in respect of his deceased mother who is the registered owner of the suit property.

10. The 1st Respondent contends that there is no landlord/tenant relationship between him and the applicant and this court has no jurisdiction to hear and determine the matter which raises issues of ownership of the suit property. As such the orders sought ought to be denied in the interest of justice and fairness.

11. The applicant filed an affidavit sworn on September 9, 2022 which is described as “Further Resplying Affidavit” and reiterates that the 1st Respondent failed to pay rent after the death of his mother. He deposes that upon his mother’s demise, he was the one left to manage the suit property since he was close to his mother and assisted her in managing the business premises during her lifetime. As such, the applicant contends that he was the genuine landlord of the suit premises after his mother’s demise.

12. The applicant denies that his mother sold the suit property to the 1st Respondent as she would have informed him of the same having been close to her and assisted in managing the suit premises. As such, the sale agreement is a forgery as it is not backed with payment of stamp duty or any bank receipts or bank statements neither are there competent witnesses for both parties. The signature on the agreement is different from that of his late mother.

13. The applicant exhibits several documents to compare his late mother’s known signature against the alleged tenancy agreement executed on August 18 2020.

14. The applicant seeks that the 1st Respondent be compelled to provide payment receipts, bank statements, Mpesa statements and stamp duty receipts to prove the sale transaction.

15. The applicant relies on ownership documents marked X1 and X2 to prove that he is the genuine landlord in respect of the business premises. The said documents confirm that plot no. 07, zone 16 in Kiambu Dandora Farmers Co. Ltd belongs to Alice Muthoni Wangondu.

16. The matter was ordered to be canvassed by way of written submissions. The applicant’s submissions are dated September 9, 2022 and the 4th Respondent’s submissions are dated September 13 2022. I have not seen any submissions by the other Respondents.

17. The issues for determination going by the pleadings are as follows:a.Whether the applicant has locus standi to institute the instant proceedings in absence of letters of administration in respect of his late mother’s estate.b.Whether this Tribunal has jurisdiction to entertain the instant proceedings.c.Whether there exists a landlord/tenant relationship between the applicant and the 1st Respondent.d.Whether the applicant is entitled to the reliefs sought in this matter.e.Who is liable to pay costs of the proceedings?.

18. It has been submitted on the authority of Law Society of Kenya – vs- Commissioner of Lands & Others (2001) eKLR that the applicant having admitted that the suit property belonged to his deceased mother and was moving this Tribunal in his capacity as the son of deceased landlord lacked locus standi to appear or be heard in the instant proceedings. He also relies on the decisions in Julian Adoyo Ongunga -vs- Francis Kiberenge Abano (2016) eKLR and Hawo Shanko – vs- Mohamed Uta Sonko (2018) eKLR to buttress the said submission.

19. It is further submitted that the fact that the applicant is a son of the deceased does not automatically cloth him with the locus standi to move this Tribunal in absence of letters of administration ad litem.

20. On the other hand, the applicant contends that this matter originates from a tenancy agreement between his late mother and the 1st Respondent who runs a business at the suit premises. The tenancy agreement has never been rescinded or terminated by either party. If the contract is still in force, the applicant submits that the Tribunal should proceed with the case.

21. It is the applicant’s contention that he is entitled to the reliefs sought as long as the landlord/tenant relationship has not been rescinded or come to an end by performance. The contract was entered into on August 18, 2020 which was executed by both parties. The agreed rent is Kshs.10,000/- per month. The applicant upon death of his mother took over the suit premises and despite the tenant having been paying rent before her demise dutifully stopped doing so.

22. It is only in June 2021, when the 1st Respondent claimed to have bought the suit premises but could not produce documents requested for by the applicant. The applicant contends that the tenant is illegally trying to disinherit him.

23. In the case of Ramadhan Mohammed Ali – vs- Hasim Salim Ghanim (2015) eKLR which had similar facts with this case, the superior court while addressing the question of locus standi at paragraph 11 had the following to say:-“11. There is no dispute that the Respondent was in relation to the payment of rent the Appellant’s landlord and from the evidence before the Tribunal, he is the person who is entitled to rents and profits from the suit property as part of the deceased’s estate. As such, it was not compulsory for him to apply for and take out a Grant of administration under section 45 of the Law of Succession Act before giving the notice of termination of tenancy. The Tribunal’s finding at page 3 of its judgment is correct that:-

“ownership is not an issue relevant under the landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya”.

24. The said case went on appeal vide Civil Appeal No. 64 of 2015 at Mombasa (Ramadhan Mohammed Ali – vs- Hashim Salim Ganim(2016) eKLR but the appeal was dismissed and the High Court judgment was upheld.

25. The superior court in the said case considered the provisions of section 45(1) of the Law of Succession Act, Cap.160, Laws of Kenya which provides as follows:-‘’45(1). Except so far as expressly authorized by this Act or by any other written law or by a grant of representation under this Act, no person shall for any purpose take possession or dispose of or otherwise intermeddle with any property of a deceased”.

26. The appellant’s case just as in this case was that the Respondent not being the registered owner or legal administrator of the suit property had no capacity to issue notice to the Appellant to vacate the suit property but the court at paragraphs 9 and 10 of the judgment stated as follows:“9. The answer to this question is to be found by the reference to two statutes, section 45(supra) of the Law of Succession Act which permits a person to deal with the estate of a deceased if it is permitted by another law. The question which then arises is which law allows the dealing of a deceased’s estate without a grant of representation”.

10. The answer is to be found in section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301, Laws of Kenya) which defines a “Landlord” in relation to a tenancy to mean:-………..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”.

27. Guided by the foregoing decisions, I am persuaded that the applicant has demonstrated that as a son of the deceased landlord who assisted her in managing the suit property he is the person who entered into her shoes upon demise as the landlord of the suit property and it is therefore misconceived for the Respondents to contend that he has no locus standi to institute the instant proceedings in view of section 2 of Cap. 301 as read with section 45(1) of Cap. 160, Laws of Kenya.

28. As to whether, this Tribunal has jurisdiction to determine the instant dispute, the Respondents have cited the cases of:-i.The owners of Motor Vessel ‘LillianS’ – vs- Caltex Oil (Kenya) Ltd (1989) eKLR &ii.Samuel Kamau Macharia – vs- KCB & 2 Others (2012) eKLR.

29. It is submitted that since the ownership of the suit property has been challenged, this Tribunal has no jurisdiction to hear and determine matters of that nature under section 12 of Cap. 301 and as such ought to down its tools as the issue goes into the root of the matter.

30. The applicant in his submissions contend that the issue before this Tribunal is the tenancy agreement entered into between his late mother and the 1st Respondent after death of the original landlord and all documents pertaining to ownership of the suit property are in the name of the deceased landlord. As such the issue of ownership of the property does not arise and if the tenant desires to litigate thereon, he ought to file appropriate proceedings in the forum with jurisdiction to determine it. No transfer had been effected in favour of the tenant neither is there evidence of the alleged sale save for the disputed sale agreement.

31. Section 12 (1) (a) of Cap. 301, grants this Tribunal power to determine whether or not any tenancy is a controlled tenancy. It is the contention of the applicant that the 1st Respondent went into possession of the premises by dint of a tenancy agreement entered into with his deceased mother on 18th August 2020. The applicant disputes any sale having taken place between the 1st Respondent and the deceased landlord. The 1st Respondent, if he so desires ought to file necessary legal proceedings in the appropriate forum to prove the alleged sale.

32. The applicant seeks to enforce the tenancy agreement entered into between his deceased mother and the 1st Respondent. The agreement has neither been rescinded nor terminated as submitted by the tenant. I therefore find and hold that there exists a landlord/tenant relationship between the applicant and the 1st Respondent by dint of the tenancy agreement dated 18th August 2020 pursuant to which the tenant took possession of the suit premises. The same is controlled.

33. As to whether the applicant is entitled to the reliefs claimed in this case, I note that there is no notice issued under section 4(2) of Cap. 301 Laws of Kenya for termination of the 1st Respondent’s tenancy over the suit property and an order of vacant possession cannot therefore inure in favour of the applicant in absence of such notice.

34. However, the applicant is entitled to an order compelling the 1st Respondent to pay rent from the time the original landlord passed away to date and thereafter on monthly basis at the rate of Kshs.10,000/- per month. In default of payment of the rent, the applicant shall be at liberty to levy distress against the goods and properties of the 1st Respondent to recover the rent arrears which stood at Kshs.130,000/- as at June 23, 2022 and currently at Kshs.170,000/- as at October 312022. The OCS, Soweto Police Station shall ensure law and order is maintained during the distress exercise.

35. As regards costs, the same are in the discretion of this Tribunal under section 12(1)(k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reason to deny costs to the applicant. I shall not however award any costs to the 2nd, 3rd and 4th Respondents despite there being no reliefs granted against them as they supported the 1st Respondent’s case who even swore an affidavit on their behalf, indeed the 4th Respondent filed submissions in support of the Respondent’s case.

36. In conclusion, the following final orders commend to me in this case:-i.There exists a landlord/tenant relationship between the applicant and the 1st Respondent which is a controlled tenancy under section 2(1) of Cap. 301, Laws of Kenya.ii.The 1st Respondent/tenant is hereby compelled to clear rent arrears of Kshs.170,000/- for the period 1st April 2021 to 31st October 2022 and thereafter to pay monthly rent at the rate of Kshs.10,000/- in advance on or before the 7th day of each succeeding month as per the tenancy agreement.iii.In default of payment of the said arrears, the applicant/landlord is granted leave to levy distress against the goods and properties of the 1st Respondent/tenant to recover the same.iv.The OCS, Soweto Police Station shall ensure that law and order is maintained during the process of distress.v.The fees payable on the distress order is hereby waived in view of the nature of the dispute.vi.The 1st Respondent shall pay costs of Kshs.20,000/- to the Landlord/Applicant.

It is so ordered.

RULING SIGNED, DATED, & DELIVERED THIS 31ST DAY OF OCTOBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:-Miss Olwe holding brief for Okatch for 4th Respondent**Landlord present in person3