Kiliungu v Mutwiri [2024] KEBPRT 189 (KLR)

Kiliungu v Mutwiri (Tribunal Case E042 of 2023) [2024] KEBPRT 189 (KLR) (1 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 189 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E042 of 2023

CN Mugambi, Chair

February 1, 2024

Between

Samuel Kiliungu

Tenant

and

Lewis Kathurima Mutwiri

Landlord

Ruling

Introduction 1. This ruling is in respect of the applications dated 5. 10. 2023 filed by the tenant and 26. 10. 2023 filed by the landlord.

2. The tenant’s application dated 5. 10. 2023 seeks an order that the landlord’s notice to terminate or alter terms of tenancy dated 15. 8.2023 be revoked and/or cancelled.

3. The landlord’s application dated 26. 10. 2023 seeks orders to the effect that the landlord be granted leave to levy distress against the tenants, that the tenancy between the parties herein be declared to have expired on 31. 3.2020 and that the Applicant be evicted from the suit premises plot No. 1477 situate at LAARE Town in Meru county. The landlord has also sought police assistance in the compliance with the orders sought.

The Tenant’s depositions in support of his application dated 5. 10. 2023 4. The tenant’s affidavit in support of his application sworn on 5. 10. 2023 may be summarized as follows;-a.That he is the tenant of one Ms. Catherine Gakii Mworia in the suit premises having entered into a tenancy agreement with the said landlady on 7. 4.2016. b.That on 15. 8.2023, the Respondent herein served the tenant with a notice to terminate tenancy, it is the tenant’s position that the Respondent is not his landlord and therefore has no authority to issue the tenant with the said notice.c.That the tenant is aware that the Respondent herein is not the owner of the suit premises.d.That the tenant is opposed to the notice.

The landlord’s depositions in support of his application dated 26. 10. 2023 5. The landlord’s affidavit in support of the application dated 26. 10. 2023 may be summarized as follows:-a.That the Respondent is the landlord of the suit premises having entered into a lease agreement with the tenant on 7. 4.2016 expiring on 31. 3.2020. b.That upon execution of the lease agreement, the tenant paid rent for four years amounting to Kshs. 185,840/= but remained with a balance of Kshs. 6,160/=.c.That on 1. 4.2020, the Respondent issued the tenant with a notice to increase rent from Kshs. 4,000/= to Kshs. 30,000/=.d.That the tenant has failed to pay rent since March 2020, accumulating rent arrears of Kshs. 1,236,160/=.e.That the tenant continues to occupy the premises without paying rent.f.That the tenant is in illegal occupation of the premises having been served with a notice to terminate his tenancy dated 18. 8.2023. g.That the tenant is aware that the Respondent was taken seriously ill and the tenant is taking advantage of the Respondent’s illness to swindle the landlord and gain unfair advantage.h.That the Respondent is entitled to levy distress and also to enter upon the premises and take possession thereof.

The Tenant’s affidavit in response to the landlord’s application 6. The tenant’s replying affidavit may be summarized as follows:-a.That the Respondent is not the tenant’s landlord and has no locus to levy distress or evict the tenant.b.That the tenant used to pay rent to one Justus Murerwa M’ajogi who was/is the registered owner and after his demise, the tenant continued paying rent to one Ms. Catherine Gakii Mworia, the widow of the deceased and whom the tenant duly recognizes as the landlord of the suit premises.c.That the tenant has not paid any rent to the Respondent and/or dealt with him in any way.d.That at the time the Respondent issued the notice to terminate tenancy to the tenants, he had no authority from the landlord, Ms. Catherine Gakii Mworia to issue the said notice.e.That the affidavit sworn by Ms. Catherin Gakii Mworia on 26. 10. 2023 cannot operate as a grant of authority and neither can it operate retrogressively.f.That during the four year term of the lease, the tenant advanced money to Ms. Catherin Gakii Mworia to cover rent for the subsequent rent period and even after the purported expiry of the lease, the tenant continued to pay rent and therefore an implied tenancy in the tenant’s favour was created.g.That the tenant has never been served with any notice to increase rent.

Analysis and determination 7. The issues that arise for determination in both applications, are, in my view, the following;-a.Whether the Respondent had the capacity to issue to the tenant the landlord’s notice to terminate or alter terms of tenancy dated 15. 8.2023. b.Whether the Respondent is entitled to the orders sought in his application dated 26. 10. 2023.

Issue A 8. The notice to terminate or alter terms of tenancy dated 15. 8.2023 is issued by Lewis Kathurima Mutwiri as the landlord of the suit premises. The lease agreement for the suit premises dated 7. 4.2016 is between Ms. Catherine Gakii Mworia and the tenant, Samuel Kilingu. The Respondent herein does not feature in the said lease agreement. I have seen an affidavit sworn by the said Catherin Gakii Mworia on 26. 10. 2023 wherein she depones that she is the registered owner of the suit land and after she fell ill in May 2019, and developed serious speech impediment, she granted the Respondent authority to act on her behalf.

9. I do not think that the Respondent herein can take over the affairs of the said Ms. Catherine Gakii Mworia in the manner suggested in the affidavit sworn by the said Catherine Gakii Mworia. A power of attorney, general or specific would have sufficed.

10. I also do note that the affidavits sworn by the Respondent herein do not purport to be sworn on behalf of a third party as the Respondent holds himself out as the landlord. The affidavits are factually misleading in as far as they portray the Respondent as the landlord of the suit premises. The affidavits sworn by the Respondent are also factually misleading as far as they state that the Respondent herein entered into a lease agreement with the tenant on 7. 4.2016. The Respondent is not a party to the said tenancy and no evidence of the assignment of the rights, obligations and liabilities in that agreement in favour of the Respondent has been exhibited.

11. Section 2 of Cap 301 defines a landlord as follows:-“Landlord in relation to a tenancy means the person for the time being entitled as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy.”In this case, I agree with the submissions by counsel for the tenant that the person entitled to rent and who actually received rent from the tenant was the said Ms. Catherine Gakii Mworia.Infact, the tenant’s deposition that he has not paid any rent to the Respondent and or dealt with him in any manner has not been challenged by the Respondent and neither has the Respondent demonstrated that he has ever received any rent from the tenant herein.

12. Consequently, and on the basis of the foregoing, I do find that the Respondent is not the landlord of the tenant and therefore he lacked the capacity to issue the notice to terminate or alter terms of tenancy dated 15. 8.2023. The notice is therefore invalid and of no legal consequences.

13. In the circumstances, the notice to terminate tenancy dated 15. 8.2023 is hereby revoked.

Issue B 14. Having already found that the Respondent is not the landlord of the tenant, it follows that the Respondent is not entitled to the orders of eviction and leave to levy distress against the tenant. The Respondent’s application is dismissed.

15. Each party will bear their own costs of the complaint and the application.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 1ST DAY OF FEBRUARY 2024HON. CYPRIAN MUGAMBICHAIRPERSON02. 2024Delivered in the absence of the parties.