Billiah Achand & Micah Kayamba v Victor Magemebe; John Nyangaresi Magembe (Interested Party) [2021] KEBPRT 148 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 92 OF 2019 AND 93 OF 2019 (KISII)

BILLIAH ACHAND.......................1ST TENANT /APPLICANT

MICAH KAYAMBA.......................2ND TENANT/APPLICANT

VERSUS

VICTOR MAGEMEBE...............LANDLORD/RESPONDENT

AND

JOHN NYANGARESI MAGEMBE......INTERESTED PARTY

RULING

Parties and Their Representative

1. The Tenants/ Applicants, rented shop spaces on the 1st Floor of the property situated in Kisii Town/Block III/253, Kisii for business (hereinafter referred to as the “Tenants”)

2. The Landlord/Respondent entered in to a Tenancy Agreement with the Tenants/ Applicants dated 10th May 2017.

3. Learned Counsel R.Miruka & Co. Advocates represent the Tenants and the Landlord. (rmirukaadvocates@gmail.com)

4. The interested party is the proprietor of the suit premises rented out to the Tenants. (hereinafter referred to as the “Landlord”)

5. Learned Counsel G.M. Nyambati & Co. Advocates represent the Interested Party. (oooadvocates@gmail.com)

The Dispute Background

6. On 4th October 2019, the Tenants filed references challenging the termination of their tenancies by the Landlord on the grounds that their properties were being subjected to distress for rent by Elimonyaco Auctioneers instructed by the Interested Party via a letter dated 14th August 2019.

7. On 7th October 2019 the Tribunal gave orders in favor of the Tenants restraining the Landlord and Elimonyaco Auctioneers from selling the Tenants’ distressed goods pending the hearing and determination of the reference and also from evicting the Tenant.

8. On 16th October 2019 the Court gave an order dismissing the reference for want of prosecution, ordered each Tenant to pay the Landlord costs of Kshs. 25,000and discharged the interim orders issued on 7th October 2019.

9. On 5th November 2019 the Tenants filed an application seeking the ex parte orders dated 16th October 2019 be set aside or stayed pending the inter partes hearing and that the Interested Party to open up the suit premises. On 7th November 2019 the Court issued and order staying the orders issued on 16th October 2019and ordered the Interested party to open up the suit premises.

10. On the 22nd of March the Court gave further orders that the Auctioneers are to release the Tenant’s distressed goods subject to the payment of the charges and the Tenant shall pay rent in the Tribunals account with effect from 1st December 2019.

11.  On 2nd March 2021 the Court gave direction that the Applications dated 5th November 2019 to be heard by way of written submissions on 29th March 2021. The submissions filing was confirmed on 25th April 2021 and the matter set for ruling on 1st November 2021.

11. The application therefore coming for ruling is the Landlord’s application dated 5th November 2019.

The Dispute Background

13. The Landlord entered into a Tenancy Agreement with the Tenants dated 10th May 2017 for a period of 5 years at a consideration of Kshs. 15,000.

14. It is the Tenants claim that the Interested party is unknown to them as he is not the person they entered into the Tenancy agreement with. Hence, he could not lawfully purport to terminate their tenancies.

15. It is the Interested Party’s claim that following the demise of the proprietor, he gained ownership of the suit premises as a beneficiary in the deceased’s will which was affirmed by the ruling of Succession Cause No. 4 of 2018 delivered on 2nd July 2019.

The Claim and Defence

16. The Tenants filed various reference on the 4thof October 2019 challenging the termination of their Tenancy and the distress of rent by the Auctioneers.

17. The Tenants case is that there have been paying rent to the Landlord and that the Interested Party is unknown to them. It is also their claim that they do not have any rent arears and that the Interested Party not being a party to the Tenancy Agreement had no capacity to terminate their tenancies

18. The Interested Party’s case is that he is the rightful proprietor of the suit premises and that the Tenants have a rent arears amounting to Kshs. 330,000. It is also the Interested Party’s submission that a tenancy- landlord relationship does not exist between himself and the Tenants since the Tenants have already vacated the premises and that this court lacks the jurisdiction.

List of Issue for Determination

19. 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 the Tribunal has Jurisdiction?

b. Whether the Tenants are entitled to the orders sought?

Analysis and Findings

Whether the Tribunal has Jurisdiction?

20. As per the Tenancy Agreement dated 10th May 2017, the Landlord is the said Victor Angwenyi Magembe. The Tenants contend that they have been paying rent to the abovementioned Landlord and that the Interested party is unknown to them.

21. The Interested Party John Nyagaresi Mugembe issued the Tenants with a termination notice as prescribed under Section 4(2)of the Act. Furthermore, the said Interested party went as far as to instruct Elimonyalo Auctioneers to distress for Rent against the Tenants via a letter dated 14th August 2019.

22. This Act main objective is to ensure the protection of tenants from eviction or from exploitation. Section 12 (4)further provides that, “In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit.”

23. The complaint before this Court has been brought by Controlled Tenants who’s tenancy is being exploited by the Interested Party. In other words, the Tenants are seeking protection from exploitation by the Interested Party. I hence find that this Court has the competent jurisdiction to hear this dispute.

Whether the Tenants are entitled to the orders sought?

24. From the evidence adduced before this Court, it is clear that the Interested did not comply with any of the procedures set out by the Distress For Rent Act Cap 293and the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act Cap 301. The Landlord unlawfully barricaded the entrance to the suit premises on the pretext of rental arrears without any prior notice or demand to the Tenant.

25.   It is trite law that that unless a Tenant consents or agrees to give possession, the Landlord has to obtain all orders from a competent Court or statutory tribunal to obtain an order for possession. As was stated in the case of Gusii Mwalimu Investment Company Ltd vs Mwalim Hotel Kisii Limited CA Civil Appeal no. 160 of 1995at page 10 of the decision.

26. Furthermore, Section 12(1)(h) provides that this Court has the power to permit the levy of distress for rent and no such order was issued by this Court.

27.  In the absence of a court order I find that the Interested Party acted in total disregard of the law when he unlawfully locked up the suit premises thereby depriving the Tenants of their possession. The Interested Party’s action amounted to constructive eviction of the Tenant from the suit premises. Since the Interested Party did not obtain a court order for possession, the Tenant’s eviction from the suit premises was illegal and unlawful.

28. The injunctive orders sought by the Tenants this Court is guided by the principles in Giella vs Cassman Brown and Co. Ltdwhere the Court set out the principles for interlocutory injunctions.

“The conditions for the grant of an interlocutory are now, I think well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury in which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

28.  I find that the Tenants have established the threshold set out in the above case to warrant this Court to grant them injunctive orders

ORDERS

For the reasons given above I ORDER as follows that:

a. The Tenants application dated 5th November 2019 is successful.

b. The References 92 and 93 of 2019 be set down for full hearing in the next session in Kisii.

c. Costs in Cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 12thday ofNovember, 2021 in the presence of OkemwaforNyambatifor(Interested Party)andChesotfor Mirukafor theLandlord/Respondent.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL