Edwin Mwangi Wairagu t/a Trade Wide Auctioneers & Witeithie Farmers Co. N.K. Property Consultants v Esther Njeri Akwami [2021] KEBPRT 645 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 97 OF 2021 (NAIROBI)

EDWIN MWANGI WAIRAGU T/A

TRADE WIDE AUCTIONEERS...............................AUCTIONEERS/1ST APPLICANT

WITEITHIE FARMERS CO.

N.K. PROPERTY CONSULTANTS...............................LANDLORD/2ND APPLICANT

VERSUS

ESTHER NJERI AKWAMI........................................................TENANT/RESPONDENT

RULING

Edwin Mwangi Wairagu T/A Wind Auctioneers has referred a complaint to this Tribunal against one Esther Njeri Akwami, Witeithie House Room 419 Thika.  The complaint is that;

“The Tenant has locked the office and vacated to an unknown place without payment of rent.  We need access orders.”

The reference is dated 1st February 2021.

On the same day that the reference was filed, the Applicant filed a notice of motion under a certificate of urgency wherein at prayer 2, the application sought for orders in the following terms;

2. That the honourable court do order Officer Commanding Thika Police Station to authorize and direct police officers to escort the auctioneer Edwin Mwangi Wairagu to the Tenant’s premises Witeithie House Room 419 Thika for the purposes of entry, maintaining peace and order and to witness execution of the letter of instruction dated 13th August 2020 from the Landlord for seizure, repossession of all proclaimed goods and furniture for the recovery of the sum of Kshs 70,245/- together with the costs of the attachment.

The motion is supported by the affidavit of Edwin Mwangi Wairagu the Applicant.  When the matter came up for hearing ex-parte before the Tribunal, the Applicant was ordered to serve the same for hearing on 23rd February 2021.

The Applicant dully appeared on the 23rd February 2021 but the Respondent was absent.  An affidavit of service sworn on 9th February 2021 attests to the fact of service upon the Respondent.  In view of the lack of any response/challenge to the Applicant’s application dated 1st February 2021, the Applicant prayed that the applications be allowed.

The notice of motion dated 1st February 2021 effectively seeks to terminate the tenancy between the Tenant and the Landlord.  The procedure for the termination of and alteration of terms and conditions in controlled tenancies is provided for under section 4 of Cap 301.  Under section 2 of the said Act, a Landlord has been defined as

“...means 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 tenancy.”

The Applicant herein does not meet the definition of a Landlord as expressly defined under the Act.  Even if I were to find that the Applicant meets the definition of a Landlord under the Act, then the issue would be whether the Applicant has followed the procedure provided under the Act (Cap 301) for the termination of a controlled tenancy.

From the material placed before me, I do not find evidence of any notice to terminate the tenancy issued under section 4(2) of Cap 301.  The reference filed by the Applicant on 1st February 2021 has therefore no basis in law.

And further, having found that the Applicant herein was not the Respondent’s Landlord, he had no capacity to file the reference.  His involvement in this matter could only have come up at the execution stage after the proper Landlord’s case had been determined by the Tribunal.

In any event, there is no evidence that the “reference” by the Applicant herein has been served upon the Tenant, seeing as it is that the reference and the notice herein were filed on the same day.

In the circumstances, I strike out the reference by the Applicant on 1st February 2021 and further dismiss the application dated 1st February 2021 with no orders as to costs.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated and delivered this 4th day of March 2021 in the presence of Edwin Mwangi Wairagu, the Applicant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

The ruling in this matter shall apply to the applications (all) dated 1st February 2021 in the following matters:

1. BPRT No 97/2021

2. BPRT No 98/2021

3. BPRT No 99/2021

4. BPRT No 100/2021

5. BPRT No 101/2021

6. BPRT No 102/2021

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

04. 03. 2021