Omariba v Njeri [2025] KEBPRT 253 (KLR)

Omariba v Njeri (Tribunal Case E195 of 2024) [2025] KEBPRT 253 (KLR) (Commercial & Admiralty) (23 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 253 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Commercial and Admiralty

Tribunal Case E195 of 2024

P Kitur, Member

April 23, 2025

Between

Irene Boyani Omariba

Tenant

and

Grace Njeri

Landlord

Ruling

A. Parties 1. The Respondent, according to the pleadings filed by the Applicant, is stated to be the landlord of Apartments 3H and 3J located at PGS Apartments, opposite Menengai High School in Nakuru (hereinafter referred to as the suit premises).

2. The firm of Murimi, Mbago & Muchela Advocates appears for the Respondent.

3. The Applicant is in occupation of the suit premises where she operates businesses.

4. The firm of Odhiambo Paul Xistus Advocates is on record for the Applicant.

B. The Dispute Background. 5. On 21st December 2024, the Applicant approached this Honourable Tribunal by way of a Complaint and a Notice of Motion under Certificate of Urgency.

6. The application sought, inter alia, an interim order restraining the Respondent from interfering with her quiet occupation and enjoyment of the suit premises.

7. The Applicant also sought an order compelling the Respondent to furnish her with a full and accurate statement of rental accounts so as to ascertain the amount due and facilitate payment.

8. Upon consideration of the said Application and Complaint, this Tribunal issued interim orders on 23rd December 2024 and directed that the matter be served upon the Respondent for inter partes hearing.

9. The Respondent subsequently filed a Replying Affidavit dated 31st January 2025, wherein she denied being the landlord of the suit premises and averred that she had been wrongly sued. She contended that the landlord is PGS Enterprise Limited, a distinct legal entity, and annexed a copy of lease agreement dated 1st February 2023 to that effect.

10. Further, the Respondent deponed that the Applicant had, in a separate case—BPRT Case No. E192 of 2024, sued Maureen Wanjiru (a witness to the same lease agreement), again erroneously, while seeking similar reliefs.

11. The Tribunal thereafter directed that the application be disposed of by way of written submissions, which were duly filed by both parties. The matter is now ripe for determination.

C. List Of Issues For Determination. 12. Upon a careful consideration of the Application and submissions filed by the parties, the following issue arises for determination:i.Whether the Tenant/ Applicant is entitled to the relief sought in the Application dated 21st December 2024.

D. Analysis And Findings. 13. In the present case, the Tenant predicates her claim on the assumption that the Respondent is her landlord. This belief arises from the Respondent’s active involvement in matters relating to the premises, including handling communications and attending to various tenant-related concerns. As a result, the Tenant perceives the Respondent to be the proper party to this suit and seeks relief against her in that capacity.

14. In determining whether the Respondent is the proper party to this suit, the Tribunal places reliance on the case of Apex International Ltd and Anglo Leasing and Finance International Finance Ltd v Kenya Anti-Corruption Commission (2012) eKLR, where the Court quoted the words of Mukhtar J. of the Supreme Court of Nigeria in Goodwill and Trust Investment Ltd V Will and Bush Ltd (2011) LCN/B820 (SC) as follows:-“It is trite law that to be competent and have jurisdiction over a matter proper parties must be identified before the action can succeed, the parties must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the Court, the Court lacks jurisdiction to hear the suit and where the Court purports to excise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.”

15. Notably, the Respondent has vehemently denied any legal relationship of tenancy with the Applicant, and in support of her assertion, she has produced a copy of lease agreement dated 1st February 2023, showing that the Tenant entered into the tenancy with PGS Enterprise Limited.

16. The Tribunal reiterates the principle of privity of contract as recognized by the Court of Appeal in the case of Agricultural Finance Corporation Vs Lengetia Company Limited & Another (1986) eKLR, which cited;“As it stated in Halsbury’s Laws of England, 3rd Edition, Volume 8 at paragraph 110:As a general rule a contract affects only the parties to it, and cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.”

17. Additionally, Section 107 of the Evidence Act Cap 80 provides:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”

18. The burden of proof rests squarely on the Tenant to demonstrate that the Respondent is indeed her landlord. However, no shred of evidence has been adduced to support this assertion. The Tribunal cannot base its findings on guess work, assumptions, or unsubstantiated claims.

19. It is also worth re-emphasizing the legal personality of a company. In Salomon v Salomon & Co Ltd (1897) AC 22, Lord Macnaghten emphatically affirmed the distinct legal personality of a corporation, separate from its members, in the following enduring words:“The company is at law a different person altogether from its subscribers...and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers, as members, liable, in any shape or form, except to the extent and in the manner provided by the act.”

20. By virtue of this doctrine, directors, shareholders, or agents of a company cannot be personally sued for obligations undertaken by the company, save for exceptional circumstances warranting the lifting of the corporate veil—which, notably, have not been demonstrated in this matter.

21. Accordingly, the proper party to be sued in the event of a tenancy dispute under the said lease would be PGS Enterprise Limited, and not the Respondent who is a third party to the agreement.

22. Equally, it is important to note that the law does not allow a party to adduce oral evidence to vary the terms of a written contract. Section 97(1) of the Evidence Act, Cap 80, provides:“When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act.”

23. In addition, Section 3 of the Law of Contract Act, Cap 23, similarly defines a disposition to include a lease. Thus, where a lease exists in writing, no oral evidence can be admitted to contradict it, unless permitted under the narrow exceptions provided in law.

24. In view of the above legal analysis, I find that the Tenant/Applicant has failed to establish any legal nexus between herself and the Respondent. The suit has been brought against a party who has no legal or contractual obligation towards the Applicant.

25. The consequence of suing an improper party renders the Application fatally defective. The proceedings, as constituted, are both incompetent and misconceived, and cannot stand.

E. Orders. 26. Accordingly, I make the following final orders:i.The Tenant’s Complaint and Application dated 21st December 2024 are hereby dismissed in their entirety, for having been instituted against the wrong party.ii.Cost are awarded to the Respondent assessed at Kshs. 20,000/=.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 23RD DAY OF APRIL 2025