Felistas Njeri Mukoma v Catherine Wanjiru Mwaura, Beatrice Wairura Kamau, Peter Mwaura Ndambuki & Crispus Hinga Wanjiru [2018] KEELC 3441 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MURANG’A

E.L.C NO. 388 OF 2017

FELISTAS NJERI MUKOMA.............................................PLAINTIFF

VS

CATHERINE WANJIRU MWAURA.......................1ST DEFENDANT

BEATRICE WAIRURA KAMAU............................2ND DEFENDANT

PETER MWAURA NDAMBUKI.............................3RD DEFENDANT

CRISPUS HINGA WANJIRU..................................4TH DEFENDANT

JUDGMENT

1. The Plaintiff filed suit against the Defendants on 12/1/17 seeking the following orders;

a) A declaration that the lease agreement dated 13th January 2016 in respect of that property known as Kabete/Kabete/2057 is null and void.

b) A Mandatory injunction to compel the Defendants in general and the 1st Defendants in particular to immediately refund to the Plaintiff the sum of Kshs. 660,000/= paid as rent.

c) Interest on (b) above at Court rates.

d) Costs of this suit.

e) Any other relief that this Honourable Court may deem fit to grant.

2. It is the Plaintiff’s case that the Defendants entered into a lease agreement on 13/1/16 with the Plaintiff in respect to LR No. Kabete/Kabete/2057. That pursuant to the said agreement the Plaintiff paid Kshs. 660,000/= being the first years annual rent which rent was received by the Defendants whilst knowing that they had no legal capacity to so lease or receive the said rent. That later the Defendants refused to give the Plaintiff quiet and peaceful enjoyment of the premises in total breach of the lease agreement.

3. The Defendants were served with the summons to enter appearance on 20/1/17 but failed to so enter appearance nor file defence. The Plaintiff applied and was granted interlocutory judgement on 27/4/17. Thereafter the matter was fixed for hearing of the formal proof.

4. At the formal proof the Plaintiff testified solely and stated that she entered into a lease agreement on 13/1/16 in respect to the suit land for a period of 10 years and 6 months effective 1/4/2016 at the monthly rent of Kshs. 55,000/= per month. That in fulfilment of the lease covenants, she paid the full years rent in the sum of Kshs. 660,000/= vide bankers cheque No. 00317 dated 13/1/16 addressed to 1st Defendant with the consent of the other Defendants.

5. That the Defendants had represented to the Plaintiff that they had the legal capacity to lease the suit land as the beneficiaries of the estate of Kennedy Mwaura Mbugua. That it was part of the covenant that the Defendants would grant quiet possession of the premises to the plaintiff during the term of the case.

6. Further that the Defendants have breached the agreement by refusing her to enter the premises. In addition that the Defendants have failed to avail to her advocates any documentary proof of the Defendants legal capacity in law to lease the premises as beneficiaries of registered owner who is deceased.

7. The Plaintiff chose not to file written submissions.

8. I have considered the pleadings as filed, the evidence on record and the issue is whether the lease agreement was null and void. Whether the Defendants should refund the Plaintiff the sum of Kshs. 660,000/= and finally costs of the suit.

9. The Defendants failed to file a defence to the Plaintiffs claim therefore the claim is uncontroverted. As to whether the agreement of lease was null and void on account of grant of administration, I have seen a grant letters of administration in respect of the estate of Kennedy Mwaura Mbugua given to Catherine Wanjiru Mwaura on 20/2/17. This was long after signing the agreement of lease on 13/1/16 wherein the Defendants signed as the beneficiaries of the estate of Kennedy Mwaura Mbugua. To enter into a lease agreement and receive rent thereto without legal representation of the owner of the estate amounts to intermeddling of the estate contrary to section 45 of the Law of Succession Act. It is trite law that any transaction undertaken in respect to an estate of a deceased person amounts to intermeddling of the estate and is null and void.

10. Having found the lease agreement entered into being null and void it then follows that the monies paid in respect to rent pursuant to a void and null agreement is refundable to the Plaintiff. It should also be noted that the Plaintiffs claim that the Defendant did not give vacant possession compounded the already null and void transaction.

11. The upshot  is the Plaintiffs Succeeds and orders are made as follows;

a) A declaration that the lease agreement dated 13th January 2016 in respect of that property known as Kabete/Kabete/2057 is null and void.

b) The Defendants in general and the 1st Defendants in particular be and hereby ordered to immediately refund to the Plaintiff the sum of Kshs. 660,000/= paid as rent.

c) Interest on (b) above at Court rates until payment in full.

d) Costs of this suit.

DELIVERED, DATED AND SIGNED AT MURANG’A THIS 3RD DAY OF MAY, 2018

J .G. KEMEI

JUDGE