Evangelical Lutheran Church, Johnes Kutuk Ole Meliyio & Jukius Osoro Mokua v Sucha Singh [2022] KEBPRT 89 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 332 OF 2021 (NAIROBI)

EVANGELICAL LUTHERAN CHURCH..............................TENANT/ APPLICANT

JOHNES KUTUK OLE MELIYIO &

JUKIUS OSORO MOKUA..........INTENDED 1ST & 2ND INTERESTED PARTIES

VERSUS

SUCHA SINGH ............................................................LANDLORD/RESPONDENT

RULING

A.  Parties and Representatives

1.   The Tenant Evangelical Lutheran Church is the current occupant of the suit property the land LR No. 209/327/103 situated at Pangani Nairobi allegedly owned by itself (hereinafter known as the ‘Tenant’).

2. The firm of Chacha Matiko & Company Advocates represent the Tenant/Applicant in this matter. chachamatikoadvocates@gmail.com

3.   The Landlord/Respondent is the alleged owner of the suit property LR No. 209/327/103 seeking to be granted vacant possession of the land (hereinafter the “Landlord”).

4.   The firm of Asembo & Co. Advocates represent the Landlord/Respondent in this matter. asemboasembo@gmail.com

B.  The Dispute Background

5.   On 2nd June 2021 the Landlord moved this Tribunal by way of a notice of motion under certificate of urgency under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Landlord was seeking orders to be allowed to remove and prevent the Tenant from the suit property LR No. 209/327/103.

6.   On 22nd June 2021 the Tribunal granted the above orders to the Landlord.

7.   On 2nd July 2021 the Tenant filed an application seeking to have the orders granted by this Tribunal on 22nd June stayed and set aside pending the hearing and determination of this application and that the Landlord/Respondent be restrained from interfering with the Tenant’s possession of the suit property.

8.   This Honourable Tribunal pronounced itself in a ruling delivered on 26th August 2021 and held that the application lacked a legal leg to stand upon and further that the application dated 2nd June 2021 remained unopposed and granted the orders sought.

9.   The Tenant has since filed a notice of motion application under certificate of urgency under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Tenant is seeking orders to be allowed to join the 1st and 2nd Intended Interested Parties as parties to the suit.

C.  The Claim

10. The Landlord filed a notice of motion application under certificate of urgency and supporting affidavit dated 2nd June 2021 and obtained orders from the Tribunal on 22nd June 2021.

11. In response the Tenant filed an application dated 2nd July 2021 seeking to stay and set aside the orders granted on 22nd June 2021.

12. The Tribunal gave a ruling on the application and dismissed the same stating that the party defending had no locus.

13. The Tenant has filed an application dated 4th October 2021 seeking to have two parties joined to the suit as interested parties, which pleadings form the basis of this claim.

D.  List of Issues for Determination

14. It is the contention of this Tribunal that the issues raised for determination are as follows;

a)   Whether the Tribunal can grant orders sought to join the intended interested parties to the suit?

E.   Analysis and Findings

a)   Whether the Tenant is entitled to the orders sought to join the Intended Interested Parties to the suit?

15. Having perused the court file, it is the contention of this Tribunal that the arguments presented by the Applicants to have the parties joined as interested parties have merit. The parties should be accorded an opportunity to be heard to help establish the true ownership of the suit property.

16. However, the Tribunal is also cognizant of the orders given in its ruling delivered on 26th August 2021 whereby the application seeking to set aside orders granted to the Landlord vide application dated 2nd June, 2021 was dismissed. Further the Tribunal in its ruling was of the opinion that the reference dated 2nd June, 2021 was to be set down for hearing in 60 days which has since lapsed as such there is nothing before this Tribunal to which the Interested Party can be enjoined properly so unless they reinstate the said landlords reference or file one of their own.

17. Based on the foregoing, the Tribunal holds that there are no grounds preventing the parties from being joined to the suit however the same will be an action in futility for the Applicants seeing as there are no active proceedings before the Tribunal.

18. The Applicants stand a better chance of having their issues properly ventilated by filing a fresh reference before the Tribunal or moving to the Environment and Land Court wherein issues ownership can be ventilated because that appears to be the intention of the Interested Party in joining this cause and to which the tribunal would have no jurisdiction.

F.   Orders

a)   The upshot is that the Tenant’s notice of motion application dated 5th October 2021 is hereby denied

b)   Each party shall bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 1stday ofFebruary, 2022 in the presence of Chachafor theInterested partyand in the absence of the Landlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL