Mwai v Bosibori [2022] KEBPRT 205 (KLR)

Mwai v Bosibori (Tribunal Case E068 of 2021) [2022] KEBPRT 205 (KLR) (Civ) (15 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 205 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E068 of 2021

P May, Vice Chair

July 15, 2022

Between

Doris Wanjiru Mwai t/a George Mwai

Applicant

and

Damacline Bosibori

Respondent

Ruling

1. The application before me is the Landlord ’s notice of motion filed under certificate of urgency dated December 21, 2021. The application sought orders inter alia:a.Spentb.That the respondent herein is hereby ordered to remove her products displayed on the corridor and maintain them within her rental premises measuring 225sq ft forthwith and unconditionally.c.That the respondent herein by herself, her servants, employees and/or respondent authorized persons are hereby restrained from blocking way and/or denying access, displaying her products/merchandise on the way and/or causing nuisance to other adjoining tenants and/or subjecting tenants and the landlord to annoyance and/or in any other manner interfering with its peaceful occupation of the suit premises pending the hearing of the application interpartes.d.That the OCS Nanyuki, Police Station do ensure compliance of these orders.e.That cost of the application be borne by the tenant/respondent.

2. The Tribunal issued interim orders in favour of the landlord on December 23, 2021 pending interpartes hearing. There were orders further that the landlord effects service of the application.

3. The respondent subsequently filed a detailed and rather lengthy replying affidavit opposing the aforesaid applicant’s application. The parties were directed to file submissions.

4. The Tenant simultaneously with the said replying affidavit filed her Notice of preliminary objection dated February 10, 2022 in which she has attacked the capacity of the applicant in instituting these proceedings on the grounds that George Mwai Investment Company Limited is a distinct legal person in law and did not authorize the filing of these proceedings.

5. The parties were directed to canvass the application by way of written submissions.

6. I have considered the same together with the affidavits and annexures on record and would proceed as follows:

7. The summary of the landlord’s case is that the tenant has been adamantly displaying her wares in a manner that obstructs the way for the other tenants. This has therefore caused friction between the tenants who have raised complaints with the landlord. The landlord has approached the tenant with the view of resolving the issue amicably but the same has been futile.

8. The tenant on the other hand took a multi faceted approach in attacking the application. She states that the application is incompetent as it has been filed by an individual who does not have authority from the company. Secondly she maintains that she has at all times carried out her trade within the demarcated space as provided under the lease. She therefore faults the landlord for peddling falsehoods against her.

9. The issues for determination in this application are fairly straightforward. First whether the applicant has locus to institute the present proceedings. Secondly whether the application has merit.

10. On the first issue , I have perused through the documents filed with keen detail. I have also taken concern that the landlord filed the pleadings in person but subsequently failed to appear when the matter was cause-listed. Nonetheless she has described herself as a 80 year old property owner. I have observed that the signature on the supporting affidavit and the one on the agreement are similar. I am convinced that it belongs to the landlord.

11. It is trite law that a company is a separate legal entity from the shareholders or even directors. It is a juristic person. I am not however convinced that the tenant is likely to be embarrassed by the description of the landlord and suffer prejudice as a result thereof.

12. I shall in line with article 159 of the Constitution of Kenya, 2010 assume that the application is by the company. This shall enable me do substantive justice to both parties.

13. I find support of that position in the words of Lenaola J in the case of Nzomo WambuavWote Town Council(2008) eKLR while citing the case of James Mwangagi & 64othersvsWote Town Council HCC 113/ 2004 that:-“Clearly, the advocates as did their client knew who was being sued and understood the misdescription in the name of the defendant but that fact does not change the cause of action against it nor the substratum of the suit as well as the questions in dispute. I therefore agree with Wendoh J, in James Mwangagi (supra) when the learned judge stated as follows:-“the defendant/respondent is not properly described but mere misdescriptions of a party cannot render a suit incompetent. This matter has just been filed and the court has wide discretion under order 1 rule 10 of Civil Procedure Rule to an amendment of the parties on its own or upon application” ”

14. Having made the above finding, I will proceed to assess whether the application has merit. The parties have been divided diametrically on this issue. They have each tendered evidence in form of photos in support of their respective positions. The agreement between the parties was reduced into writing. The leased space was mutually agreed upon. Probably the parties required the same to be demarcated!

15. In view of the foregoing and guided by the powers granted to the Tribunal under section 12 of Cap 301 ,it is important that the Tribunal makes orders that ensure that the ends of justice are achieved.

16. The landlord was aggrieved by the actions of the tenant thus filing the present application. The issues raised in my view could have been solved by the parties on their own but we are here now.

17. I am inclined to allow the notice of motion dated December 21, 2021 in terms of prayers 2 , 3 and 4.

18. Costs are awarded to the landlordIt is so ordered.

RULING SIGNED, DATED AND DELIVERED THIS 15TH DAY OF JULY 2022. HON. P. MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Tegeret for the Tenant/RespondentNo appearance of the Landlord/Applicant