Dl Koisagat Tea Estate Ltd v Eritrea Othodox Tewhdo Church Ltd [2015] KEHC 2482 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA MILIMANI LAW AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO.  56 OF 2015

DL KOISAGAT TEA ESTATE LTD ………….………….PLAINTIFF

VERSUS

ERITREA OTHODOX TEWHDO

CHURCH LTD……………………..…………………………DEFENDANT

RULING

By  a Notice of Motion  dated 12th February 2015 and filed  on 13th March 2015 the plaintiff/applicant D.L. Koisagat  Tea  Estate Ltd seeks  from   this court  orders injunction  restraining  the defendant  Eritrean  Orthodox Tewhado  Church  its  servants, officers employees  and or agents   from harassing, evicting the plaintiff/ applicant, encroaching into, transferring, alienating and terminating the plaintiffs/applicant’s  tenancy or lease  and or in  any way dealing with or  interfering  with the  quiet possession  and enjoyment  of the  applicant/tenant over all that  premises erected  on land Reference  Number 209/6804 pending  the hearing and determination of this suit; and that costs  be provided for.

The matter  was filed under certificate  or urgency and  the applicant’s  Notice of Motion  was considered  exparte   in the first instance and an interim temporary  injunction  issued pending  the interpartes mention  and subsequent  extensions  of the said order  was made  pending hearing and determination  of the application.

The application is premised on 15 grounds (a-o), which grounds nonetheless, provide the background to the entire dispute as summarized below.

That on or about  the 21st day  of November 2013  the applicant  and respondent entered into a tenancy agreement   in respect  of the suit  premises for a term of one  year ending  21st  November 2014  and immediately  upon signing  of the said  agreement the two  parties mutually agreed(orally) that  the tenancy would be extended for 5 years. On the strength of  that  mutual agreement, the  applicant/tenant  carried out  refurbishments  to the premises which  included  additional works in the belief that  it would enjoy a longer tenancy of 5 years, which renovation and works were inspected and approved by the respondent/landlord.  That the  tenant  spend over Kshs  16,000,000 on the  said refurbishment  but that the tenant  was utterly shocked  on 8th September 2014 when  the landlord  served it with a notice  of cessation of  the lease on the premises   and indicating that it would not renew  the tenancy  and asking  for handing over  of the premises upon such expiry of the tenancy agreement, which the  tenant  protested and filed  a Reference  in the Business Premises Rent Tribunal  case No. 755/2014.

The Tribunal  granted  interim injunctive orders restraining  the landlord  from evicting  the tenant  but could not  grant a full injunction hence Notice of  Withdrawal of that case was filed and  this suit filed herein.

The applicant contends that as at  the time  of receipt  of the Notice of  cessation of  the tenancy, it had  paid rent  up to  and including February  2015 and that unless  the orders  of injunction  are granted, the applicant  will suffer  irreparably  since it  has invested  massively in the renovation of the  premises  upon the  representation by the landlord  that the  lease would be extended  for 5 years.

The supporting  affidavit is sworn  by Johnson  E.O Owino on 12th February  2015  which is a replica  of the grounds  as summarized above, and annexing copy of the lease agreement, letter of cessation, letter of approval  of renovation, tribunal’s interim orders, notice of  withdrawal  of tribunal Reference and correspondences   between the parties  advocates together with plans and bills of  quantities  for the proposed renovation works.

The application was opposed. The defendant filed grounds of opposition and replying affidavit sworn by Andemichael Hadera Chairman of the defendant church as well as a preliminary objection notice contending that the court herein lacks jurisdiction to hear the application and the suit and that the application offends statutory provisions of the law.

The defendant  contends that the application  is bad  in law and  a nullity and that the court  was created to arbitrate  disputes  and not to  create contracts  between parties; the application is frivolous, vexatious and  an abuse of the court process and  that   members of  the defendant  who are in excess  of 200,000 are suffering  as a  result of the suit.

The defendants admit  entering  into  a tenancy agreement  with the applicant but contend that the said tenancy  was for  one  year and that it lapsed  and that  the church members wish to  use  its premises  after loosing out  on another tenancy  wherein  they were worshipping  vide an eviction following  an order in Nairobi HCC  2289 of 2007.

In the defendant’s view, the approval to refurbish the premises was subject to the terms and conditions of the tenancy and that the plaintiffs   were never assured of any extension of the tenancy on the said premises.

Further,  that the  plaintiff  does not  deserve  the orders sought  as it was notified  in writing that there was no intention  to renew  the agreement  and that the allegation that the plaintiffs used Kshs  16 million to refurbish the premises  was outrageous.

The parties Advocates canvassed the application by way of oral submissions. The plaintiff/applicant relied wholly on their grounds on the face of the application and affidavit of Johnson E.O Owino, its Director. Mr Wachira  counsel for the  applicant  submitted  in line with  the said detailed  grounds and supporting  affidavit emphasizing   that  the parties had one on one discussions on  the issue of renewal of the tenancy  before refurbishments  were approved  albeit  there  were no minutes of such meetings.  Mr Wachira also raised the issue of the capacity of the deponent Mr Hadera since he was not one of the Trustees who manage the church and not members of the committee.

The applicant also relied on the doctrine of equitable estoppel, urging the court to prevent the respondent from taking action that will bring an inequitable result, since it had continued to receive rent.

Counsel submitted that the applicant  had met  the threshold  settled in the case of  Guiella v Casman Brown for the  granting of interlocutory prohibitory   injunctions by demonstrating that they  have a prima facie  case with  a probability  of success  and that it will suffer  irreparably  if the  orders sought are not  granted  and relied  on Snails  Equity  12th Edition paragraph  569-579, praying for the orders.

In opposition to the applicant’s application, Mr Omwenga counsel for the respondent relied on the Grounds of opposition, replying affidavit of Andemichael Hadera and the preliminary  objection  contending that there was no tenancy  relationship between the two disputing parties capable of  being enforced  or extended and reiterated what was  in the replying  affidavit that the church required the premises  for a place  of worship  since it  had been  evicted  from an  alternative  land  and that  their members had  nowhere  else to worship from.  He denied  that there were oral  representations made to the applicant that the tenancy would be extended  for 5 years and maintained  that the  landlord  had not approved  refurbishment  subject to  the extension  promise  which was  not even reduced  into writing. Mr Omwenga submitted that the applicant had not satisfied the conditions in Order 40 Rule 1 of the Civil Procedure Rules that:

The property in dispute  is under danger  of damage, alienation or wastage;

The property was being disposed of or removed for the court to grant an injunction.

Further, that there was no evidence that the defendant was breaching any contract for an injunction to issue.  Further, that the applicant had not shown any irreparable harm as it had quantified the loss likely to be suffered.

Mr Omwenga further submitted that a mandatory injunction cannot issue to compel  the defendant  to review  the lease as that would  be asking the court to  rewrite  the  contract  between the parties  and that neither   can the  court order  for Notice of termination to be  18 months  or even compel the defendant  to sell the property  to the  applicant.

Mr Omwenga also submitted  that the applicant’s  conduct  disentitled  it to the equitable  remedy  of injunction since  it obtained  orders   from the tribunal  and refused to serve  upon the respondent  until when  they withdrew   the complaint  and immediately  came to this court where they obtained another exparte  order which conduct  was questionable.

Counsel also submitted that the defendant is a society which cannot sue or be sued in its own name, and relied on Sections 40 and 2 of the Societies Act.

Further, it was submitted on behalf of the defendant respondent that Section 12(2) of the Landlord  and  Tenant Act (Cap 301) makes  provision  for repossession of a  property  and that the  tribunal is the one which  is vested  with jurisdiction  to determine  that dispute.  It was also submitted for the defendant that the applicant had not specified  the person who had  promised to extend  the tenancy  and that since  it was the Trustees  who had signed the  tenancy, only Trustees could have  been sued and that acceptance  of rent   does not  validate  or recreate a lapsed  tenancy.

Mr Omwenga also submitted that the doctrine of estoppel was  inapplicable  as there was nothing  to show that the defendant  committed   itself  to renewing  the tenancy.  For any additional term upon its expiry. The defendants urged this court to dismiss the application by the plaintiff with costs.

In a brief rejoinder, Mr  Wachira  for the applicant submitted  that Cap 301  did not  apply  to this case and that the  applicant  could not sue Trustees  since the Tenancy was between the church and  the applicant  and not with Trustees  and that  the title documents were in the names of  the defendant not Trustees.  He also submitted   that Order 40 of the Civil Procedure Rules was relevant to this case since they had demonstrated breach of contract.

I have carefully considered the application, grounds depositions in the affidavits and arguments of counsels for the parties in line with the primary suit subject matter of the dispute herein cited.

No doubt, this being an application for an injunction, the applicant  must demonstrate  that is has a prima facie  case with a  high probability  of success, and that it  stands  to suffer  irreparable  loss which cannot be adequately compensated by an award of damages unless  the injunction  is granted.  And if  the court is  in doubt, then it  will decide on a  balance  of convenience, which  principles  were clearly set out  and settled  in the case of  GIELLA v. CASSMAN BROWN & CO. LTD[1973] EA 358 at page 360 where Spry J. held that:-

“The conditions for the grant of an interlocutory injunction 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 normally be granted unless the applicant might otherwise suffer irreparable injury, 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.”

The applicant in my view, for  it to show that it  has a prima facie  case with a  probability  of success, it must  prove certain  facts and in this case it must  prove that:

It is a tenant or is entitled to the tenancy of the respondent’s premises and that it has established prima facie case with a probability of success.

Whether doctrine of equitable estoppel is applicable and whether the applicant shall suffer irreparable harm unless the orders sought are granted.

That this court has jurisdiction to hear and determine this suit and therefore the application for injunction.

That it has sued the right person.

On the first point, it is not in dispute that the copy of annexed tenancy agreement   is very clear that the tenancy was for 1 year ending on 21st November 2014 from 21st November 2013. It cannot therefore, be, in the absence of any evidence to the contrary that there was any tenant/landlord relationship between the parties hereto after 21st November 2014 unless extended by mutual agreement.

It is also clear that  on 26th August  2014  before the said  tenancy lapsed, the respondent through its  advocates, Jackson Omwenga wrote and served  the  applicant  with a notice of cessation of the tenancy in question  upon  its expiry on 21st November 2014, which  was 3 months before expiry of the said tenancy. It cannot, therefore be said that the letter or notice was a shocker since there is no evidence that the applicant had served a similar notice of intention to extend the tenancy beyond the one year period contemplated in the tenancy agreement.

On 9th December  2014, the defendants  advocates also  wrote another letter  to the applicant’s advocate  intimating  that the defendants were not keen to engage  in court  battles  since both  parties  were bound by the terms  and conditions  of the tenancy agreement.

It is therefore trite that there is  no tenancy  relationship subsisting  between the  disputants herein and therefore Cap 301 is inapplicable in the circumstances, since there was no issue of holding over where the dispute begun before expiry of the tenancy.

On whether the doctrine of equitable estoppel applies in this case,  we must appreciate what estoppel and in this case, promissory estoppel is all about. Black’s Law Dictionary defines promissory estoppel as:-

“The principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasonably expected the promise to rely on the promise and if the promise did actually rely on the promise to his or her detriment.”

Promissory estoppel has also been described as having 4 elements or ingredients which the appellant must prove in their claim if they relied on it

a)      That there was a promise

b)      That the promise was reasonably relied upon

c)      That it resulted in legal detriment to the promise

d)      That justice requires enforcement of the promise.

In the case of Benjamin Airo Shiraku – Vs - Fauzia Mohammed HCC 272 of 2011 Justice Havelock (as he then was) and quite recently retired, citing Lord Denning in Coube – Vs – Coube [1951] 2 KB 215 held that:

“Where one party by his words or conduct made to the other a promise or an assurance which was intended to affect their legal relations and to be acted on accordingly then once the other party has taken him at his work and acted on it, the one who gave the promise or assurance cannot afterwards, be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him.

But he must accept the legal relations subject to the qualification which he himself has so introduced even though it is not supported in point of law by consideration but only his word.”

In other words, if one promises another and the other acts on that promise then the promisor cannot resile.

For the plaintiff applicant to succeed on this issue, they had to prove several facts.  Section 107 of the Evidence Act Cap 80 laws of Kenya provides that,

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

Section 108 of the same Act provides that

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

In my humble view, the burden of proving that there was representation and undertaking relied on to its detriment lay on the plaintiff.  The plaintiff has to prove that there was representation or promise and that the defendant acted on that promise.

I have perused  the applicant’s  letter dated  26th November 2013 written  a few days  after signing  the tenancy  agreement  with the  defendants, and seeking approval from the defendant to carry out  refurbishment  and additional  works  on  the plot LR 209/6804 (IR 22167).

In the said  request, there  is absolutely no mention that with the  with the projected improvements, it was expected that the  tenancy period would  be extended  for a further period in order to  enable  the plaintiff applicants recoup their  investment.

I have also perused the  approval letter of 30th November 2013  by the defendant, four days  later wherein the defendant was  clear that  the approval for  the  refurbishment  and additional   works  and design  that the defendant did not like  were expected to  be removed  and original design restored  at the time of vacating  of the property, in line with the  lease contract agreement. Again, there is no indication that a new lease agreement or extension of the tenancy was anticipated. The improvements were therefore expected to be temporary in nature, as there is no indication that they were to affect the tenancy period.

The respondent’s intentions were further made clear  in their letter  of 26th August  2014  reminding the applicant  that it SHALL NOT  renew  the  tenancy agreement. Albeit  on  29th September  2014  the applicant’s advocates  responded to the letter of  26th August  2014  a month later, expressing   shock at  the change of heart by the defendant, referring  to the meetings  held between the representatives of  both parties on extension of the tenancy, there  is absolutely  no indication of the dates, times and places or even the respective representatives of the defendant and plaintiff that met and agreed to the extension of the term of the tenancy agreement or that  such meetings  were minuted.  The said  letter also referred  to letter of 22nd March 2014  seeking for an amendment to the lease agreement  in view of the substantial improvements  to the premises  costing Kshs 15,000,000 which  renovations had allegedly changed  the status  of the  property  from residential dwelling  house to office  space (commercial) property. The said letter stated  that.

“In order  to abide  by Nairobi City County By Laws , we should  apply for change  of user  from the current residential  dwelling property  to commercial …….”

With utmost  respect  to the plaintiff applicant, the  law  mandates  that before one  embarks  on change of user of premises  from one approved  category to  another, approval must be  obtained from the relevant local authority and in this case, the City County and physical planning Department of Nairobi.

In the instant case, however, the  applicant allegedly and admittedly embarked  on an  elaborate  project  of a total makeover  and overhaul  of a residential  building into a commercial premises  without  any approvals  from the City County  and was  now seeking for amendment  of the lease agreement  to 6 years  or an order to “comply  with the change  of user requirements after the fact.”

The said  letter also  proposes  other terms  including  granting the plaintiff the  prior  or “first right of purchase” the property  should the  landlord  decide to  dispose  of the property.

Failure  to obtain  change of  user approval  is contrary to Section 30 (1 ) of the Physical Planning Act  See ELC 214/2013 (2013) e KLR  Wainaina  Kenyanjui & 2 Others  v Andrew  Nganga  (zoned  residential  to business  commercial). The said provisions enact that: “No person shall carry out development within the area of a local authority without a development permission granted by local authority.”

From the tenancy agreement itself, it is clear at clause A and B that the same was subject to rules and regulations affecting the premises or the land. Secondly, the premises were a HOUSEand therefore it was expected  that any change of description to the building had to be done  within the existing   rules  and regulations affecting  the premises or the land. Clause 6(e) of the agreement was also clear that upon expiry of the term, the tenant was to deliver up to the landlord the demised premises.

In this case, the applicant declined to deliver up the premises to the respondent. The Local Authority to which the application for approval is made for change of user is required to have regard to the health, amenities and conveniences of the community generally and density  of development and land use in the area. Environmental considerations would also be fundamental to any development approval and an Environment Impact Assessment may be required to be provided under Section 36 of the Physical Planning Act. Under Section 58 (1) of EMCA, such approval must be given before commencement of change of user of premises.  No advert for change of user.  In other words, material change from a house to a commercial property had to receive approval from the City County of Nairobi and not the landlord since even if it was the landlord effecting such changes, it was obliged by law to seek and obtain such approval before embarking on the changes.

It therefore follows that the plaintiff knew or ought to have known that  before carrying out any change of user development to the tenanted premises, such approvals had to be obtained, upon which the tenancy agreement would then change from occupation of a housed to commercial property. Section 3 of the Physical planning Act defines development to include the making of any material charge in the use or diversity of any buildings or land.  In this case it is (buildings) that were to be altered.

I have examined the  proposed  bills of quantities  attached to the plaintiff’s affidavit in support  dated November  2013 and the proposed  designed plan  and I have  not seen  a single approval from the City County of Nairobi or  from the Physical Planning Department. The applicant simply received   an “approval” from the landlord to carry out  the works.  It is however telling that the Bills of Quantities were done  in November 2013  and the proposals/designs  done  in the same month, even  before  settling into the premises.

I have also examined the plaint dated 12th February 2015  and the prayers thereof  are startling.  The applicant  seeks  mandatory orders including  compulsive  orders for the respondent  to vary the lease  term to six  years, prohibitory injunctions   to restrain  the respondent from  dealing in any way with  the demised  premises and or  interfering  with the applicant’s quiet  enjoyment  and possession of the demised premises  and or from terminating the tenancy among other demands.

No doubt, the applicant did commit an illegality by altering  the premises from residential to  commercial property  without  the requisite  approval and intends  to use this court to compel  the respondent  to accede to  that illegality.  That attempt, in my view, is an abuse of the court process.

Courts of law are designed to enforce contracts between parties and not to re-write contracts between parties.  In this case, this court is unable  to phantom an agreement  in place, whether  written or  oral between the parties, in view of the above  revelations, that is capable of enforcement  and it cannot under  any  circumstances  be used to rewrite  contracts  for parties.

There being  no landlord/tenant relationship, if the  applicant wished to occupy  or purchase the  defendant’s premises  then it should  negotiate  that new  contract (s)  with the  defendant/respondent and not seek out the court to  compel the defendant to perform what, apparently, has not been agreed upon and to legalize the change of user which I have found to have been illegal in the first instance.

On that point alone, I find that the applicant has not demonstrated that is has any prima facie case with a probability of success.

In National Bank (K) Ltd v Pipe Plastic Sarkolit (K) Ltd &  Another CA 95/99, the  Court of Appeal made it clear that a court of law  cannot rewrite  a contract  between the parties  as the parties  are bound  by the terms  of their contract, unless  coercion, fraud  or undue  influence  are  pleaded.

From the pleadings and affidavit on record, there is no allegation or semblance of an allegation of fraud, coercion or undue influence on the part of the respondent.  It therefore follows that the purported equitable estopped is a farfetched allegation not backed by any evidence of misconduct by the respondent.

In CA 282/2004 Waki, Warsame  & Gatembu JJA  Between Margaret  Njeru Muiruri v Bank  of Baroda(K) Ltd  the Court of Appeal referring  to the  National Bank  of Kenya Ltd v Pipe Plastic Sankolit (K) (Supra) restated the principle that:

“  a court of law cannot  rewrite  a contract  with regard  to interest as the parties  are bound by the terms  of their contract”

The Court of Appeal also stated at paragraph 36.

“ Nevertheless  courts have  never been shy to interfere with  or refuse  to enforce  contracts  with are  unconscionable, unfair  or oppressive  due to  the procedural  abuse  during formation of the contract, or due to contract  terms that are unreasonably  favourable to  on party and would  preclude  meaningful choice  for the other party….”

The Court of Appeal  was also  persuaded  but  the decision by  Mwera J ( as he then was ) in  Housing Finance  Company of Kenya Ltd  v Njuguna  KLR 1176(CCK) that:

“ courts shall not be  the fora where parties indulging in varying  terms of their agreements  with others   will get  sanction to enforce the varied contracts.  Contracts  belong  to parties  and they are at liberty  to  negotiate and even vary the terms as and  when  they are at  liberty  to negotiate and even  vary the terms as and when  they choose.   This they must do together with the meeting of the minds.  If is  appears  to a court  that one party  varied  the terms  of a contract  with another, without  the knowledge, consent or otherwise  of  the other, and the other  demonstrates  that the contract  did not  permit  such variation, this court  will say no to the enforcement of such a contract.”

Applying the above principle  to this case, it is clear that there is no  tenancy relationship between the parties  the same having lapsed on 21st November 2014 and there is also no single communication  or representation made by the respondent to the applicant  which this court can infer  an equitable estoppel,  prima facie .  To hold otherwise  would  be tantamount to compelling the respondent  to enter  into a forceful  marriage  with the  applicant, which marriage  was  never intended   from the onset.

The Court of Appeal also weighed  those principles  in the case of Kenya Commercial  Finance  Co. Ltd v Ngeny & Another  (2002)  1 KLR  where  it stated :

“ The court will not interfere  where parties  have contracted  on  arms length basis.  However, by  its equitable  jurisdiction , this court  will set  aside any bargain  which is  harsh, unconscionable  and oppressive  or where having  agreed to  certain terms  and conditions  thereafter imposes additional terms  upon other  party.  Equity can intervene to relieve that party of such conditions.”

What I find in this case is  the applicant trying  to use the court to  impose upon the respondent  terms of entitlement  to an amendment to the tenancy  agreement which had lapsed  and to declare  first right  of entitlement to purchase  the premises  even  when there is nothing demonstrative  of the defendant’s intention to enter into  such kind of terms by the respondent.

On whether this court  has jurisdiction  to hear and determine  this suit and therefore  the application, the respondent avers  that the  matte of the landlord  taking possession  of premises  is governed  by Section 12 of the Landlord/Tenant( Hostels, shops  and Catering Establishment Act). The applicant on the other hand maintains that it seeks for equitable remedies of injunction which the Tribunal cannot grant as the tribunal is a statutory body.

The ancillary yet important  question  is was the tenancy  herein governed by Cap 301  and Secondly, was  there a tenant/landlord relationship  capable of being protected as at the time of filing this suit?

The tenancy agreement clause 2 is clear that the tenancy agreement was in respect of a “HOUSE” erected on Land Reference 209/6804 Nairobi, and not a shop, hotel or Catering establishment.  The BPR Tribunal would therefore only have jurisdiction on tenancies falling under the Act and not houses.

Even assuming that  the tenancy fell  within Cap 301, the tribunal had no jurisdiction to issue an injunction  Cheson J and Simpson J in Hebtulla properties Ltd (1979) KLR  96 dealing  with Section 12 of  the Said Act  stated:

“ Under Section 12 of the L & T (SH & CE) Act, the Tribunal’s powers are restricted  to the area of its jurisdiction,  that is the determination of reference made to it  under  Section 6.  These can be made  only by a receiving  party that  is a tenant who wishes to oppose a  notice of termination or alteration of the  terms or conditions  of this tenancy  or  a landlord  who  wishes to oppose a  notice by a tenant  seeking reassessment  of rent or alteration of any terms  and conditions  of the tenancy.  It has power to do all things  which  it is  required to do under  the Act.  This may be tautological, but it must refer  to Section 5(3) and (6)  the provisions  of which are  procedural only, and to the provisions of Section 9, which set out what the tribunal, can do on a reference .  In  addition to these  powers the tribunal   has the specific  powers  contained  in paragraph (a)  to n of  Section 12(1).  The  expression “ all things” being qualified  by the words  “ which it is required  or empowered to do by  or under the provisions of this Act,” no room is  left  for the application of the ejusdem generis rule……..The specific  powers include  the powers to make  an order for  the recovery of  possession from a tenants or indeed  from any person in occupation.  Such  an order would be an order made  on an application of the land lord.

No corresponding powers is given to have an order  on the application of a tenant  who has been forcefully dispossessed by a landlord.  The  powers specifically conferred can be  exercised  on a reference, which is  defined   in Section 2  as a “reference  to a tribunal  under Section 6 of  this Act.” In addition, the tribunal may investigate any complaint made by the landlord or tenant.

A clear distinction is made throughout the Act between a “reference”  and a “complaint”…. A party to a reference  has a right of appeal to the High  Court against   any determination  or order made  therein, but the maker  of a mere complaint has no such right.  The word “complaint” is referable  only to minor matters….

………The Act was passed so as to protect tenants  of certain  premises  from eviction  and exploitation by the landlords  and with  that in mind the  area of  jurisdiction of the tribunal  is to hear and determine  references .

………It would  be erroneous  to think that the tribunal has  jurisdiction  to deal with criminal acts, committed  in relation  to any tenancy nor is it  within its jurisdiction to entertain  an action for damages  for trespass. These  are matters of the courts and the tribunal cannot by  way of a  complaint to it by a landlord or tenant  purports to deal with such matters………..”

On  the issue  of jurisdiction of the  tribunal where  a tenancy has come to an end, the  Court of Appeal  in Jitendrea Mathurdas  Kanabar  & 2 Others v Fish  & Meat  Ltd CA 267/96 held  that:

“once a  reference  has not been  made  to the tribunal  and the tenancy notice has  taken effect, the landlord/tenant  relationship  comes  to an end  and there is no longer  a controlled tenancy with which  a tribunal  has no jurisdiction  and  in those  circumstances  the landlord  has to come to court to enforce  his rights.”

In this case, I find that  first, the  tenancy did not  fall under Cap 301  two fold: it was a tenancy  involving  a House  and not premises  described  under Cap 301  and secondly, even if we were  to remotely link  that tenancy  to Cap 301  then the relationship had  come to  an end and therefore  the provisions  of that Act  would not  apply since the applicability  of the  Act is a condition precedent  to the exercise  of jurisdiction by a tribunal.

There must thus be a controlled tenancy in existence, respecting a specific  category  of premises as defined in Section  2 of Cap 301  to which the provisions  of the Act can be made to  apply.  Outside it, the tribunal has no jurisdiction.  It therefore follows that this court has jurisdiction  to hear  the dispute  and determine  it fully. In CA 205/95 Narchidas  & Co Ltd vs Nyali Air Conditioning and  Refrigeration Services  Ltd, the Court of Appeal  held that  a controlled tenant  confronted  with an illegal threat  of  forcible  eviction cannot go to the  Business Premises  Rent Tribunal established  under  an Act of Parliament  as that Tribunal has  no jurisdiction  to issue an  injunction  or similar remedy against  the  landlord.   See also Caledoma  Supermarket ltd v KNEC and  Tiwi Beach Hotel Ltd v Julian Olrike Stamn.

The other issue is whether the respondent has the capacity to sue and be sued in its own name, being a society.

The respondent contended  that section 40 of  the societies  Act is clear  as to whether  the  society is an incorporated body  and that in this case the respondent  was not and that only trustees  under Section  2 of the Societies Act could be  sued and  not the church  or its members.  In a rejoinder,  the applicant contended that the  subject  premises  were  registered  in the respondent’s name  and that it is the respondent  who signed the tenancy agreement  not the trustees  hence the  respondent  is a proper party  with capacity  to sue  and be  sued in  its own name.

I have carefully perused the tenancy agreement.  It mentions Eritrean Othodox Tewhado Church as the Landlords and in the recital, it is stated that “the landlord is the beneficial owner of that entire house….” Obviously, where ownership is beneficial then the matter of registration does not arise.

The signatories  to the said agreement  are 2 trustees  albeit  their names are  not disclosed.  There is also the common seal of the church besides the signatures of trustees.  That issue as raised by the respondent’s counsel Mr Jackson Omwenga cannot be ignored.  This court  had occasion to determine it in HCC 69/2015 (2015)  e KLR  Football Kenya  Federation v Kenya Premier  League Ltd  & 4 Others exhaustively  on whether  a society  can sue  and be  sued  in its  own name.

It is not   disputed that the respondent is a society, and that the deponent of the replying affidavit is chairman of the Church Committee, not   a trustee. Although it is contended by the applicant that the tenancy agreement was signed by the members of the church, such contention is not supported by the agreement itself which is before this court.

I have examined the plaint filed  on 13th March 2015  and it describes  the defendant  as a church  established  under the Societies  Act Cap 265(sic) (108)Laws of Kenya .

In the Football Federation of Kenya  vs Kenya Premier  League  & others (supra) this court was  categorical, applying a plethora of decisions from this jurisdiction   and authoritative  writings  from and without  this jurisdiction  that in the absence  of an enabling  stature, an  unincorporated association  cannot  sue and  be sued  in  its own  name and that there must be a  suable party and a suable party is essential to jurisdiction  of the court. The court also cited the decision in Appex International Ltd & Anglo Leasing &Finance International ltd vs Kenya Anti-Corruption Commission [2012]eKLR citing with approval GOODWILL &TRUST INVESTMENTS LTD &ANOTHERVS WILL &BUSH LTD (SUPREME COURT OF NIGERIA), where the court held:

“it is trite law that to be competent and have jurisdiction over a matter, proper parties must be identified before the action can succeed. The parties to it must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the court the court lacks jurisdiction to hear the suit, and where the court purports to exercise jurisdiction which it does not have, the proceedings before it and its judgment will amount to a nullity no matter how well reasoned. ”

in Richanson  v Smith & Co. (1882) 21 FLA  336,341, the court  reiterated thus:

“ thus  a society  is  a number of persons taking into  themselves  a fictitious  name, and by that name, protruding  themselves  into a court of justice.   But  by this assumed  name they cannot appear  in a court of justice.  They can  neither  sue nor be sued by  it.   This is a privilege appertaining  to corporate bodies only.  To sue and be sued, in their corporate name is one of the greatest privileges granted to corporate bodies.  It can only be authorized by statute it is too plain   for any argument  that the  unincorporated  societies  in their own name cannot be so sued.  The right to sue and be sued is a corporatefranchise.”

In PHAKEY VS WORLD WIDE AGENCIES LTD 1948 815 EACA 1, FREE PENTECOSTAL FELLOWSHIP IN KENYA VS KCB NRB HCC 5116/2002(OS) Bosire J(as he then was) stated:

“the position in common law is that a suit by or against unincorporated bodies of persons must be brought in the names of, or against all the members of the body or bodies. Where there are numerous members, the suit may be instituted by or against one or more such persons in a representative capacity pursuant to the provisions of Order 1 rule 8 of the CPR. In the instant case, the suit was instituted in the name of a religious organization. It is not a body corporate which would then mean it would sue as a legal personality. That being so, it lacked the capacity to institute proceedings in its own name.”

Further, inTRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE VS MUMO MATEMU & 5 OTHERS[2014]eKLR the court held that:

“24]    a suit in Court is a ‘solemn’ process, “owned” solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Act, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it……..”

In my view, therefore, that preliminary point of law as raised by the Mr Omwenga is not a mere procedural technicality which can be laid to the altar of substantive justice and cured by Article 159(2)(d) of the Constitution and the Oxygen principle enshrined in sections 1A and 1B of the Civil Procedure Act.

No doubt, there is no suable party before this court and therefore no prima facie case with high chances of success can be established against a nonentity party, since a non party ousts the jurisdiction of the court to make any orders against nobody.

Moving  onto the issue of  whether  the applicant shall suffer  irreparable   damage  if the  injunction  is not  granted,  the appellant avers  that it  has spend colossal sums of money in renovating  and  or refurbishing  the premises  giving  it a  new look and to the tune of  kshs 16,000,000.  I have examined the applicant’s annexture JE005 which is headed “proposed refurbishment and new works for DL Group Officers in Kabarnet Lane Nairobi.”  It is dated November 26th 2013 and stamped by Design Spec Ltd Architects and Interior Designers.

As I have stated before in this ruling, those major or substantial changes to the House, turning it into a Commercial Building were never approved by the City County as required by law.  Secondly, what is annexed to these proceedings is nothing more than proposals and estimated   costs of each item proposed to be changed or altered to the House.  There is  absolutely  no single evidence  by way  of a photograph  of the old House  and new Commercial  Premises  and or evidence of expenditure  by way of payments  made  towards the works that were  proposed  in November 2013.  This court  is therefore  unable to find any evidence of any massive alterations or changes or expenditure incurred  towards that  end to the tune of over 16 million as alleged. The law is clear as to the burden of proof. He who alleges must proof. The applicant must proof that it stands to suffer substantial loss if the order of injunction is not made in its favour and that an award of damages would not be an adequate remedy.

Furthermore, the purported doubtful loss  having been quantified in  monetary terms, in the absence  of any evidence that the  respondent assuming it is a suable party is incapable of  compensating  the applicant   in damages, this court  holds  that the  applicant  has  miserably failed to  satisfy  this court  that it deserves  an order  of injunction, assuming  there was  a suable party  before the court.

Having clearly found that the applicant has failed to establish   a prima facie  case  with probability  of success; and that  no irreparable  a damage  will be suffered  that is incapable  of being  compensated  by way of  damages; and  that indeed  there is no  suable  party before this  court, I accordingly proceed and dismiss  the applicant’s  application dated 12th February  2015.

As there is no counterclaim  of any suable  party in  the name of the defendant and no  attempt  was made  in the glare of legal provisions, to amend  the plaint  and  the application, prior to the hearing of the interlocutory application  herein, and the defendant having raised the preliminary point of law that the defendant has no capacity to sue and be sued; and this court having agreed with Mr Omwenga on that issue, I find that there is  indeed no defendant  before  this court capable   of being  prosecuted  now and  in future  and I accordingly strike  out the plaintiff’s suit as instituted vide the plaint dated 12th February, 2015.

Costs are in the discretion of the court and in any event, to the successful party.   Nonetheless, I find that  this is  a case where I can  order that  each party  bears   their own costs  as it involves  a religious  society which has  a moral duty to reconcile members  of the society.  It is  a nonprofit  making  association  which has  incurred  costs yes but in  view of the fact that it is not a suable party under the law, I order  each party to  bear their own costs.

Dated, signed and delivered at Nairobi this 28th day of July 2015.

R.E. ABURILI

JUDGE