Nyakerario & 5 others v Mogaka & another [2024] KEBPRT 205 (KLR)

Nyakerario & 5 others v Mogaka & another (Tribunal Case E017 of 2023) [2024] KEBPRT 205 (KLR) (23 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 205 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E017 of 2023

Gakuhi Chege & J Osodo, Members

February 23, 2024

Between

Peris Nyakerario

1st Applicant

Lilian Nyakoi

2nd Applicant

Agnes M. Inziani

3rd Applicant

Elizabeth Juma

4th Applicant

Dickson Ndege Kagora

5th Applicant

Winfred Moraya

6th Applicant

and

Esther Kemuma Mogaka

1st Respondent

Alyssa Limited

2nd Respondent

Ruling

1. The Tenants moved this Tribunal through a reference dated 21st March 2023 complaining that the 1st and 2nd Respondents were harassing them by forcing the signing of new leases and to pay rent elsewhere and by threatening to evict them.

2. They simultaneously filed an application of even date seeking for restraining orders against the Respondents from interfering with their businesses and/or tenancies at Kisii Block III/334 commonly known as “Uhuru Plaza”. They also sought for status quo to be maintained pending hearing of the application and the main suit.

3. Interim orders were given on the same date pending hearing inter-partes on 2nd May 2023. On 24th March, 2024, a second application by the 3rd Tenant was filed seeking an order for maintenance of status quo in the suit premises. She also sought for restraining orders against the 1st Respondent and the Interested party (Zablon Nyamari Mogaka) from interfering with peaceful occupation of the Tenants in the suit premises renamed “ALYSSA PLAZA”which bears the same title reference. Interim orders were given in terms of the application on 27th March 2023 pending hearing inter-partes on 2nd May 2023.

4. In the application dated 21st March 2023, which is supported by the affidavit of Peris Nyakerario/1st Tenant, it is deposed that she entered into a tenancy agreement with the Interested party in respect of Shop No. G-12, Uhuru Plaza at a monthly rent of Kshs. 10,000/= in terms of annexure “PN1. ”

5. According to the 1st Tenant, she is a subtenant of the Interested party who is in turn a tenant of the 1st Respondent herein. It is deposed that the 2nd Respondent had without lawful justification threatened to evict the 1st Tenant together with the other Tenants from the suit premises.

6. The 2nd Respondent is accused of illegally contacting and using threats against the 1st Tenant and other occupants or Tenants to sign new tenancy agreements over the suit property thereby altering the terms of existing tenancies. The 2nd Respondent is also accused of purporting to illegally take over possession of the suit property and forcing the Tenants to divert rent to it failing which they would be evicted.

7. The 2nd Respondent is accused of having instructed goons to invade the suit premises who vandalized and destroyed parts of the building and instilled fear by forcefully closing and locking the 1st Tenant’s shop as per annexure “PN4. ”

8. A report was made to Kisii police station vide OB No. 43/19/03/2023 marked as annexure “PN3. ” She denies being in any rent arrears nor any breach of agreement terms. It is deposed that the issue of ownership and possession of the suit property between the 1st and 2nd Respondents was pending determination in Kisii ELC No. 29 of 2019.

9. According to the 1st Tenant, there was a previous undisclosed attempt by the 2nd Respondent to illegally alter the terms of various agreements of the Tenants which made them pay rent twice on account of fear of losing their livelihoods. It is on that basis that the present reference has been filed.

10. In the application dated 24th March 2023, the affidavit in support by the 3rd Tenant/Applicant one Agnes M. Inziani, on even date, she deposes that that she is a Tenant of the 2nd Respondent in respect of plot No. Kisii Municipality Block III/334 otherwise known as “Alyssa Plaza” (formerly “Uhuru Plaza”) as per the lease agreement marked “AN1. ”

11. She denies having issued instructions to the firm of Joseph Angwenyi & Company Advocates to file the application dated 21st March 2023. She confirms that the 2nd Respondent took possession of the building and was her landlord after she signed the lease agreement upon being shown the lease certificate and rates demand notice.

12. According to the 3rd Respondent, there was no order restraining the 2nd Respondent from taking possession of the suit premises. She denies allegations of harassment levelled against the 2nd Respondent by the 1st applicant in her affidavit.

13. The firm of Joseph Angwenyi & Company Advocates filed grounds of opposition dated 27th March 2023 maintaining that it was on record for all the Tenants herein including the 3rd Tenant. The same defends the filing of the application dated 21. 03. 2023.

14. Having gone through the said grounds, the same are not truly grounds of opposition but a disguised affidavit whose deponent is undisclosed. It is in narrative and evidential form thus failing to meet the legal test on how pleadings should be drawn. It is therefore struck out on the Tribunal’s own motion.

15. The firm of Mochiemo Gichana & Company Advocates filed a notice of change of advocates on behalf of the 3rd Tenant in place of Joseph Angwenyi & Company Advocates.

16. The 2nd Respondent filed a replying affidavit sworn by Julius Odhiambo Okumu on 8th January 2024 as its director in response to the application dated 21st March 2023 wherein he depones that the suit property is owned by the 2nd Respondent which bought it in a public auction. The certificate of title is annexed as “JOO-2. ”

17. The 2nd Respondent admits having instructed Hazara Auctioneers to take over possession of the suit premises which had been renamed as Allyssa Plaza which was notified to all the Tenants. All the Tenants signed new lease agreements with the new landlord and none has been evicted therefrom.

18. The affiant deposes that none of the Tenants had raised a complaint of harassment by the landlord’s agent. As such, it is the 2nd Respondent’s position that the 1st Applicant’s application does not meet the principles for the grant of injunction.

19. We are required to determine the following issues;a.Whether the application dated 21st March 2023 and the Complaint of even date ought to be granted or not.b.Whether the application dated 24th March 2023 ought to be granted or not.c.Who is liable to pay costs?

20. Based on the pleadings, this matter appears to be a dispute on the issue as to who is the rightful landlord in respect of the suit premises. It is interesting to note that the 1st Respondent has remained silent throughout the proceedings leaving the 1st and 3rd Applicants to fight out her battle with the 2nd Respondent.

21. The 2nd Respondent claims to have purchased the suit property in a public auction and acquired a title marked “JOO-2” attached to its director’s replying affidavit sworn on 8th January 2024. There is no rebuttal of the ownership claim by the 1st Respondent or the Tenants herein. In fact, the 3rd Tenant supports the said position and deposes that all the Tenants have already entered into new leases with the 2nd Respondent as landlord. No further affidavit to rebut the said allegation has been filed by any other party herein.

22. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya 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.”

23. We have not been provided with any evidence by the 1st Tenant/Applicant on what kind of interest the 1st Respondent has over the suit property to controvert the registered proprietorship interest claimed by the 2nd Respondent.

24. Section 24 of the Land Registration Act, 2012, provides as follows;-“Subject to this Act-a.The registration of a person as the proprietor of land shall rest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant theretoandb.The registration of a person as the proprietor of a lease shall rest in that person the leasehold interest described in the lease together with all implied and expressed rights and priviledges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.”

25. One of the benefits to which a registered proprietor of a property is entitled to is rental income from the investment. Although the 1st Tenant claims that there was a pending ownership dispute over the suit property in Kisii ELC Case No. 29 of 2019, the pleadings in the alleged case have not been supplied neither has she exhibited any order emanating therefrom restraining the 2nd Respondent from exercising proprietary rights over the property.

26. Although this Tribunal is not entitled to adjudicate issues of title to property, we find that in absence of any evidence to controvert the 2nd Respondent’s ownership of the suit property, it is entitled to the rental income accruing therefrom.

27. In the premises, we find and hold that the 1st Tenant’s reference and application dated 21st March 2023 has no merit and falls short of meeting the principles of injunction espoused in the case of Giella vs Cassman Brown & Co. Ltd [1973] EA 358 and we proceed to dismiss the same accordingly.

28. On the other hand, the 3rd Tenant’s application dated 24th March 2024 has merit as it seeks to protect the tenancies created between the 2nd Respondent and the Tenants in occupation of the suit premises whose businesses have been threatened by the tug of war between the two Respondents over entitlement to rental income accruing from the suit property. We shall therefore allow the said application.

29. In regard to costs, we shall order each party to meet own costs in line with provisions of Section 12(1)(K) of Cap 301, Laws of Kenya which grants this Tribunal discretion to award costs. It was necessary to file the Complaint and the applications under consideration for determination of the dispute on who is entitled to the rental income from the suit property.

30. In conclusion, the following orders commend to us under Section 12(4) of Cap 301, Laws of Kenya;-a.The 1st Tenant’s application dated 21/3/2023 and reference of even date are hereby dismissed with no orders as to costs.b.The 3rd Tenant’s application dated 24. 4.2023 is allowed on the basis that the 2nd Respondent is entitled to the rental income accruing from L.R. No. Kisii Municipality Block III/334 currently known as Allysa Plaza (formerly Uhuru Plaza) without any interference by the 1st Respnodent or any other person claiming through or under her.c.The OCS, Kisii police station shall ensure compliance with the foregoing orders if need be.d.Each party shall meet own costs of the case.It is so ordered.

RULING, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF FEBRUARY 2024. HON. GAKUHI CHEGE HON. JOYCE OSODOPANEL MEMBER PANEL MEMBERRuling read in absence of the parties.