Janet Mutende Kamulu v Antony Pere, Vital Properties (K) Limited & Alex Kioko Maingi [2022] KEBPRT 39 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 38 OF 2017 (KAJIADO)

JANET MUTENDE KAMULU..............................TENANT/APPLICANT

VERSUS

ANTONY PERE..............................................LANDLORD/RESPONDENT

VITAL PROPERTIES (K) LIMITED....................LANDLORD’S AGENT

ALEX KIOKO MAINGI........................................................THIRD PARTY

RULING

1.   The Tenant’s/Application dated 17th May 2021 seeks for orders that the intended third party Alex Kioko Maingi be enjoined in these proceedings for continuously causing disturbance to the Applicant by displaying goods in front of and besides the Tenant’s/Applicant’s salon.

2.   The Tenant also seeks orders restraining the intended third party from illegally displaying goods, specifically clothes in front of and besides the Tenant’s shop and/or in any manner interfering with the Tenant’s quiet occupation and lawful enjoyment of the suit premises located at plot No. Ngong/Ngong/27441 Ongata Rongai, pending the hearing and determination of this suit.

3.   The Applicant also sought orders restraining the Landlord and/or his agents from interfering with the Tenant pending the hearing and determination of this suit, Police assistance has also been sought in ensuring compliance of the court orders.

4.   The application is supported by the affidavits of Janet Mutende Kamulu which I summarize as follows;

a.   That the Landlord has been harassing the Tenant since 2015 by issuing to the Tenant illegal eviction notices.

b.   That in March 2020, the Landlord allowed a third party, Alex Kioko Maingi to display his wares (clothes) in front of and besides the Tenant’s premises.

c.   That the Tenant informed the Landlord about the aforesaid actions of the 3rd party but the Landlord.

d.   That the display by the 3rd party has negatively impacted on the business of the Tenant and she has incurred losses.

e.   That the Tenant has religiously paid rent.

f.    That the Landlord has clearly taken sides and is supporting the 3rd party in his actions.

g.   That the 3rd party has removed the goods displayed at the entrance of the Tenant’s shop but the 3rd partys continues to display clothes besides the Tenant’s wall.

h.   That the Landlord cannot purport to respond to the Applicant’s motion on behalf of the 3rd party.

5.   The application is opposed by the affidavit of Benjamin Nduati, a Director of the 2nd Respondent sworn on 27th May 2021 and which I summarize as follows;

a.   That both the Tenant/Applicant and Alex Kioko Maingi, the intended 3rd party are Tenants of the 1st Respondent/Landlord, each occupying their own spaces.

b.   That the application by the Tenant is in bad taste and can be inferred as a delaying tactic.

c.   That the Landlord does not have the capacity and cannot cause the 3rd party to block the Applicant’s place of work as claimed.

d.   That the mannequins have been displayed by the roadside on a public walk path and not at the entrance of the Applicant’s shop.

e.   That the Landlord does not own the space where the mannequins are displayed and cannot therefore dictate how it is used.

f.    That Alex Maingi Kioko does not have an interest in this reference and to include him in these proceedings as an interested party is an exercise in futility and a waste of the Tribunal’s time and resources.

6.   Both parties have filled submissions herein.  I have read and will consider the same in the determination of the Tenant’s application dated 17th May 2021.

7.   The issues for determination in my humble view, are the following;

a.   Whether the intended 3rd party, Alex Maingi Kioko may be joined as an interested party in these proceedings.

b.   Whether the Tenant/Applicant is entitled to the restraining orders he has sought against the intended third party/interested party in his application dated 17th May 2021.

8.   On issue (a)

a.   The Tenant/Applicant and the intended interested party are both Tenants of the 1st Respondent/Landlord.  As between themselves, they do not have any Landlord/Tenant relationship.  For the Tribunal to have jurisdiction to entertain a dispute between parties, the existence of a Landlord/Tenant relationship is a pre-requisite.  That relationship ortenancy has to be a controlled tenancy as defined under section 2(1)(a) of Cap 301.  No such tenancy exists between the said parties and neither is it a controlled one in any event.

b.   The reference herein was filed by the Tenant in opposition to the Landlord’s notice to terminate tenancy dated 24th April 2017.  The reasons given in that notice is that “the owner intends to use the shop.”  The intended third party or interested party has no interest in the outcome of the reference between the Applicant and the Landlord.  It would not affect the intended interested party if the Tenant’s tenancy is terminated or not.

c.   The Applicant has not demonstrated how the intended party is connected or what interest the intended third party has to the reference filed by the Applicant/Tenant.  I therefore do find that the intended interested party has no stake in the proceedings and will not be affected by the decision of the Tribunal when it is made either way.  He has no interests to articulate in this dispute and has not expressed any problems as between himself and the Landlord.  he is not a necessary party in the just and conclusive determination of the dispute between the Tenant herein and the 1st Respondent.

d.   I further do note that the dispute as between the Tenant and the intended party is a dispute between Tenants.  Both Tenants are said to occupy their respective premises and the intended third party is said to be displaying his wares in a public walkway over which the Landlord has no powers.  Even if I was to find the joinder necessary, I am still not convinced that the 3rd party has interfered with the Tenant’s/Applicant’s business to warrant the issuance of the orders sought against the intended third party.

e.   On this issue, I therefore find that the Tribunal has no jurisdiction over the alleged dispute between the Tenant/Applicant and the third party as there exists no Landlord/Tenant relationship between them.

f.    Consequently, and for the other reasons given above, I decline to have the intended third party joined in these proceedings.

9.   On Issue (b)

a.   The Tenant has resisted the Landlord’s notice to terminate his tenancy by filing the instant reference.  The same had been fixed for hearing earlier but was derailed by the applications subsequently filed.  The Tenant has stated that she has been religiously paying rent to the Landlord.  The Landlord does not deny this averment.

b.   The Tenant has also complained that the Landlord has threatened to evict her.  The threats are verbal.

10. In order to preserve the situation until the reference is heard, I will allow the Tenant’s application in terms of prayers 6 and 7.

11. I also order that the reference herein be heard on a priority basis due to its age.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman) this7th March 2022in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL