Moses Mungai Muigai & 20 others v Esther Njeri Kagunda & 4 others; Karen Wanjiku Thumbi & another (Interested Parties) [2021] KEBPRT 149 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 103 OF 2021 (NAIROBI)

MOSES MUNGAI MUIGAI & 20 OTHERS ………….……...……………. TENANTS

VERSUS

ESTHER NJERI KAGUNDA & 2 OTHERS………….….....…….………LANDLORDS

GEORGE MBUTHIA THUMBI

PETER MUNGAI THUMBI

KAREN WANJIKU THUMBI………….………….….…..1ST INTERESTED PARTIES

ELIJAH MBURU MBUGU…………..………………………2ND NTERESTED PARTY

RULING

Parties and Their Representative

1. The tenants entered into a 5 years lease agreement on 1st January 2017 for plot known as RUIRU TOWN/70 (herein after referred as the suit premises’), which lease was expected to expire on 1st January 2021.

The Dispute Background.

2. The landlords and the tenants herein entered into a 5 lease agreement over a plot, Ruiru Town/70 on 1st January. The said lease was expected to expire by effluxion of time on 1st January 2021.

3. There are several applications before this tribunal I will highlight a few that have an impact on my orders hereto, the application dated 1st July 2021 was for extension of Interim orders which is spent upon the delivery of this ruling. Another application dated 25th May, 2021 enjoins the new owner Elijah Mburu Mbogo who never participated in this proceedings. There exits interim relief as against the new owners from interfering with tenants quite possession.

4. The application pending is the application dated 28th of January 2020, application dated 2nd March 2020 and 14th February 2020 for leave to distress for rent  arrears.

The Tenant’s Case

5. The tenants contend that, the Landlords have been interfering with their tenancy on the suit premises, harassing by seeking to forcefully exercise distress for rent against the tenants, advertising goods belonging to the tenants, intending to sale their goods and interfering with the tenants’ quiet possession of the suit premises.

6. They deponed in their further affidavit dated 14th July 2020 that, following their application to the High court at Kiambu, the said Court retained the status quo in the ownership of the suit property and the issue/receiver of the rent payable. That the intention of the Court was to retain payment of the rent to their usual landlords.

7. That since then, they have been paying rent as and when they fall due to same landlords the Court instructed being their Landlord since 2013. They deponed that the proclamation by the Respondents against them seeking to exercise distress is ridiculous, intimidating, harassing and illegal.

8. They further contend that, they do not owe any arrears to the Respondents and that it is a fact the latter are aware of.

The Landlords’ Case

9. The Landlords in their supporting Affidavit dated 14th February 2020, deponed considering it as the rightful position that, the interim orders granted to George Mbuthia, Peter Muigai and Karen Wanjiku Mureithi following their application to the High court at Kiambu in the succession cause 104 of 2017 which barred administration of the deceased estate were verily cancelled in the ruling delivered by Justice Meoli on 17th July 2018. That the title as resulted reverted to the estate of the Jonah Thumbi Karimi.

10. They deponed that, prior to the said determination, they had been appointed as estate’s administrators by an order issued by Justice Ngugi on 1st February 2018.

11. That they notified all tenants of the appointment and the change of administrators in the letter dated 16th August 2017 and urged them to pay rent in the deceased administrators’ account pending appointment of new administrators and they ignored at their own peril.

12. On 16th August 2018 the landlords informed the tenants following delivery of justice Meoli’s ruling of 27th   July 2018 of the decision and further advised to whom they were meant to make their rent payments. They also informed them of the rightful administrators but ignored the information at their own risk.

13. That the tenants making rent payments to Karen Wanjiku Mureithi who is believed to have rightfully so no color in administering the deceased estate.

The Tenant’s Submission.

14. The Tenants filed written submissions dated 9th July 2020 in support of their application.

15. They submitted that the High Court at Kiambu ordered the parties in succession proceedings filed before it to pursue consent, which approach failed for the reasons occasioned by the prevailing corona virus.

16. They submitted that the Court being the superior Court indicated that it would await their determination from the consent. That the said matter was scheduled for the 13th September 2020 where the court was expected to give directions in bid to fix a hearing date of the main case.

17. It is their humble submission that the Respondents being impatient to await the said determination have resorted to exercising distress which they consider illegal. They submit that the intended distress is malicious and amounts intimidation.

18. They therefore submit seeking that the orders granted by this honorable court be extended until a determination is made by the High Court at Kiambu.

Landlord’s Submissions.

19. The Landlords filled written submissions dated 25th June 2020in support of their case. They submitted in three limbs and addressed the issues thereof as follows:

20. On the issue of preliminary objection, they submitted that the preliminary objection is not one as envisaged by the law as it requires the ascertainment of facts raised and which are clearly disputed. That the preliminary objection should fail on that count alone.

21. They buttressed their disposition citing a rendition by learned Judge J. Ojwang that;

A “ preliminary Objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. any assertion which claims to be a preliminary objection, yet it bears a factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary objection….anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence….”

22. They submitted from the foregoing that the Interested Party Preliminary objection does not satisfy the requirements of a preliminary objection for it raises a factual issue.

23.  In responding to the issue of who the legal landlord to the suit was, they submitted invoking section 45 of the law of Succession Act, that it is only legal representative of a deceased’s estates who has the authority to deal with the estate. They submitted that the 1st and 2nd respondents and the interested parties having been appointed the administrators of the estate of Jonah Thumbi Karimi are the legal landlords of the suit property and not Karen Wanjiku Thumbi.

24. On the issue of whether the tenants were in rent arrears, they submitted that, the tenants have always been aware that the purported payment of rent to Karen Wanjiku Thumbi mounted to none payments, that further, they were aware of the succession cause at Kiambu High Court over the same suit premises being Succession. Cause No. 104 of 2017 where they should have so applied (as they have since done) if they were so in doubt.

25. They submitted that the tenants ought to have paid the rent to the respondents being the legal landlords of the suit premises.

26. They humbly submitted on the need for this honorable tribunal to discharge and vacate its order issued on 30th January 2020 for the reasons that the tenants failed to disclose material facts.

Analysis of Law and Determination.

27. I have carefully analyzed all the Pleadings before this honorable Tribunal, all Submissions by parties herein and relevant evidence adduced before this Tribunal. There being no contestation as to the Jurisdiction of this Court, I shall then proceed to the merit of the applications before me.

28. I considerately find that two main issues fall for determination: Who is the rightful landlord and/or administrator of the deceased’s estate capable of receiving rent payment; and, whether it is legal for the Respondents to exercise distress for rent against the tenants.

29. It should be noted these findings shall place great reliance upon the Succession cause at Kiambu High Court in the case No. 104 of 2017.

30. It is trite law that, the man with the rightful title in land is considered the rightful owner and proprietor. For the purpose of the case before me, the landlords shall be deemed to be so upon demonstration of the ownership of the suit premises.

31. The High Court ruling in succession cause No. 104 of 2017 in the matter arising from the estate of Jonah Thumbi, being the suit premises, cancelled the title initially granted to George Mbuthia, Peter Muigai Thumbi and Karen Wanjiku Thumbi. The result of which the suit property reverted to the deceased’s estate.

32. The law of succession Act provides in section 45 that, only a legal representative of the estate of the deceased with the authority either granted by will or approved nomination/election shall deal with the estate. All conducts against the will of such appointees are considered as acts of intermeddling to the extent of illegality.

33. Vide the grant by the High Court in Kiambu issued on 25th October 2018 and a certificate of confirmation of grant issued on 5th March 2020, it clear before this honorable Court that, the suit property is not the property of George Nbuthia Thumbi. Peter Muigai Thumbi and Karen Wanjiku Thumbi. Instead it is the estate of Jonah Thumbi Karimi’s estate. It is my considered findings that the grant confirms that the 1st, 2nd and the 1st Interested Party are the administrators of the estate of Jonah Thumbi Karimi. Suit property being part of the said estate.

34. I now turn to the second issue, on whether the Respondents intentions to exercise or levy distress is rightfully so before law.

35. The concept of distress for rent is provided for by section 3 of the Distress for Rent Act. It stipulates:

Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent services as is given by the common law of England in a similar case.

36. While it can be noted from the foregoing that distress is a right or an entitlement to the landlords, it must be done with all prerequisites or procedures observed and complied with.

37. The Court in John Nthumbi Kamwithi v Asha Akimu Juma in ruling that it was illegal for a party to levy distress without the leave of the tribunal relied upon section 12 (1) h of the Landlord and Tenant ( Shops, Hotel and Catering Establishment) and  stated as follows:

A tribunal shall in relations to its areas of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act and shall have power to permit the levy of distress for rent.

38. The premises have since exchanged hands as at the 1st June 2021 the same was sold and one Elijah Mburu Mbugu became the new owner.

39. Upshot of this findings lead me to order as follows:

i. The Respondents and Elijah Mburu Mbugu are restrained from distressing for any rent before the sale of the Property being from the 1st June 2021.

ii. Tenant to pay rent on due dates to Elijah Mburu Mbugu and in default leave is granted for distress of rent arrears accruing from the 1st June 2021.

iii. Reference dated 28th January 2020 between the Tenants and Easter Njeri, Eunice Wanjiru Mwaria on one hand and George Mbuthia Thumbi, Peter Muigai Thumbi and Karen Thumbi as enjoined via application dated 26th August 2020 on the other hand be fixed for hearing within 90 days.

iv. Cost in Cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 12thday ofNovember, 2021 in the presence of Kinuthia for Makumifor the1st Respondentand in the absence of theTenants.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL