Kilatya v Nzioka; Nzioka & another (Interested Parties) [2022] KEBPRT 221 (KLR)

Kilatya v Nzioka; Nzioka & another (Interested Parties) (Tribunal Case 567 of 2020) [2022] KEBPRT 221 (KLR) (Civ) (10 June 2022) (Ruling)

Neutral citation: [2022] KEBPRT 221 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 567 of 2020

Gakuhi Chege, Vice Chair

June 10, 2022

Between

Anthony Kioko Kilatya

Applicant

and

Joel Muisyo Nzioka

Respondent

and

Magret Mueni Nzioka

Interested Party

Anne Muthike Kilungu

Interested Party

Ruling

1. The instant case was filed by the tenant seeking for restraining orders against the respondent vide a motion dated June 4, 2020 and a complaint dated June 3, 2020. The tenant also names Magret Mueni Nzioka & Anne Muthike Kilungu as interested parties.

2. I have noted that the suit premises is situate on LR No Kalimani/Kangundo/197 which is said to be owned by the late Esther Kalundu Nzioka (deceased). It is not clear from the pleadings whether any succession proceedings have been instituted in respect of the deceased’s estate.

3. I have perused annexture ‘ENK-3’ which is the purported will of the deceased and noted that it does not pass the test of a will set out under section 11 of Cap 160, Laws of Kenya which is all the more reason why this Tribunal ought to investigate the matter under section 12(4) of Cap 301 to establish who is entitled to administer the suit premises and collect rent therefrom after the demise of the owner.

4. The replying affidavit filed by the respondent herein is not signed by the deponent nor commissioned. It cannot be relied upon in this matter. However, it is important to establish what interest the respondent has in the suit premises in line with Article 159(2) (d) of the Constitution of Kenya which enjoys this court to administer justice without undue regard to procedural technicalities.

5. The initial lease given to the tenant expired on June 30, 2021 and is purported to have been renewed in the pendency of this reference. The circumstances and validity of such renewal ought to be investigated by this tribunal.

6. Finally, it will be important for this tribunal to establish who is entitled to the rental income accruing from the suit premises as this appears to be at the heart of the dispute between the respondent and the interested parties. The Tribunal shall also establish how much rent has been paid by the tenant and to whom the payment was made as no evidence has been availed before me in that regard.

7. In the premises, the orders that commend to me are:-i.The complaint herein shall proceed by way of Viva voce evidence and all the parties shall file and exchange witnesses statements and documents addressing all the issues raised in this ruling within Thirty (30) days hereof.ii.The status quo obtaining at the suit premises being LR No Kalimani/Kangundo/197 shall be maintained by all the parties herein.iii.The costs of the application dated June 4, 2020 shall abide the outcome of the main reference.iv.Mention of this case shall be fixed immediately to confirm compliance in Thirty (30) days.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Munguti for the TenantBalala for the LandlordFurther order: Mention on 8/7/2022 to confirm compliance.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL