Hassan Abdi Hirsi v Abdiwali Kalicha Adan [2020] KEBPRT 65 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 23 OF 2020 (KISII)

HASSAN ABDI HIRSI...................................................TENANT/APPLICANT

VERSUS

ABDIWALI KALICHA ADAN...........................LANDLORD/RESPONDENT

RULING

The Landlord/Respondent in the above reference served the Tenant/Applicant with the notice dated 28th February 2020 seeking to terminate the tenancy of the Tenant/Applicant on 1st May 2020.

The Tenant/Applicant on 26th March 2020 filed a notice of motion under a certificate of urgency seeking to restrain the Landlord from evicting and/or terminating the tenancy.  The Tribunal upon perusal of the application issued interim orders on 26th March 2020.

The Landlord/Applicant on 7th May 2020 filed an application under a certificate of urgency seeking to stay and/or set aside the orders issued on 26th March 2020.

The Tribunal issued interim stay orders on terms and civil appropriate directions for the hearing of the Landlord’s application dated 7th May 2020.  The advocate of the parties have filed written submissions which are on record and which the Tribunal has read in details.  It appears there have been several suits in respect of the suit premises plot number 24 Migori.

The core issue for determination by the Tribunal is whether there is a Landlord and the Tenant relationship between the parties.  The Tribunal has no jurisdiction to hear and determine ownership dispute.

The mandate of the Tribunal is set out under section 2 of Cap 301.  The Tribunal has perused the pleadings and the exhibits and notices the following:

1. The Applicant/Tenant Hassan Abdi Hirsi is not a party to ELC case No 30 of 2019 Migori.

2. The Tenant/Applicant does not claim ownership of the suit premises plot number 24 Migori.

3. The Tenant has admitted that he is in occupation of part of the premises and that he was duly served with the Landlord’s notice to terminate the tenancy.

4. That the Tenant/Applicant has not complied with the provisions of section 4(5) and 6 of Cap 301.

5. The Respondents has annexed documents of ownership in respect of the suit premises in the replying affidavit filed on 6th May 2020 paragraph 7.

6. The Respondents and one Mohamed Kheir Isaak Abdullahi are the owners of the suit premises.  The replying affidavit filed on 8th May 2020 has a comprehensive history on how the Respondent acquired the suit premises.

7. It is clear from the record that the Applicant/Tenant is descending into the arena of the ownership dispute which in the Tribunal’s considered opinion has now been settled and the Respondent and his partner are now the Landlords of the Applicant/Tenant by virtue of operation of law namely the Landlord Act 2012.

The Tenant/Applicant denial of the Respondent has a Landlord has no foundation in law.  The Applicant/Tenant is not a party to the ELC 30/2019.  The status quo in respect of the suit premises as at 26th March 2020 was that the Respondent and his partner are the owners of the suit premises.

The Tribunal has no doubt in its mind that the Applicant is a Tenant of the Landlord and is liable to pay the rent which he was paying the previous Landlord from the time the plot was transferred to the Respondent/Landlord.

The Tribunal is also satisfied that the Tenant/Applicant obtained the orders from the Tribunal on 26th March 2020 by concealment of material facts.

In the light of the above facts, the Tribunal finds that the Landlord’s application dated 24th April 2020 has no merits and the Tribunal allowed the application dated 24th April 2020 and filed in the Tribunal on 6th May 2020and makes the following specific orders:

1. The orders issued on 26th March 2020 are hereby set aside as there is no evidence that the Tenant/Applicant has filed a reference under section 6 of Cap 301.

2. The Landlord is at liberty is at liberty to levy distress and recover all outstanding arrears of rent from the time plot number 24 Migori was transferred to him and his partner up to and including June 2020.

3. The Landlord is at liberty to institute proceedings for recovery of the suit premises from the Tenant before the Tribunal.

4. The Tenant/Applicant shall pay the Landlord/Respondent costs of the proceedings assessed at shs 50,000/-.

5. Costs shall be paid within 14 days in default the Landlord shall recover the same by way of distress as part of arrears of rent.

Ruling dated and delivered this 11th day of June 2020 in the presence of Abdi Fattah son of the Tenant/Applicant and the Landlord present.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL