Restitution Chambers Kenya Limited v Akiba Properties Kenya Limited; Kibathi (Intended Interested Party) [2022] KEBPRT 202 (KLR)

Restitution Chambers Kenya Limited v Akiba Properties Kenya Limited; Kibathi (Intended Interested Party) (Tribunal Case 90 of 2021) [2022] KEBPRT 202 (KLR) (Civ) (22 April 2022) (Ruling)

Neutral citation: [2022] KEBPRT 202 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 90 of 2021

Gakuhi Chege, Vice Chair

April 22, 2022

Between

Restitution Chambers Kenya Limited

Applicant

and

Akiba Properties Kenya Limited

Respondent

and

Solastica Wambui Kibathi

Intended Interested Party

Ruling

1. By a motion dated 15th July 2021, the tenant is seeking as an interested party/Respondent to this matter.

2. The tenant is also seeking that an order does of 1st February 2021 as a Respondent/intended interested party as was directed to the Respondent.

3. The other prayers in the application except prayers 7 and 8 are already spent since they were intended to issue pending hearing inter-partes.

4. The application is supported by the affidavit of Kenneth Mwige sworn on 15th July 2021 and the grounds on the face thereof.

5. The said Kenneth Mwige deposes that he is a director of the tenant which has a controlled tenancy between it and Akiba properties Kenya Limited which is named herein as the landlord/Respondent over L.R No. 4148/94 located North East of Ruiru Township and all developments on it known as Karani Box Park.

6. It is on the basis of the said tenancy that the tenant approached this Tribunal seeking restraining orders against the landlord which had been using prospective buyers to harass the subtenants pending determination of the matter.

7. An order dated 1st February 2021 was served upon the landlord via email. The order is marked as annexure ‘JM-1’. However on 1st July 2021, the subtenants received a letter of even date giving them notice to vacate the property with effect from 31st July 2021 marked annexure ‘JM-1’ page 2.

8. The reasons given for requiring vacant possession was that Scholastica Wambui Kibathi who was the instructing client was the registered proprietor of the premises and wished to utilize the property immediately.

9. On 12th July 2021, one Angel Wanja, the Caretaker of the tenant/applicant wrote to it informing it that there were people who were harassing them claiming that they were the new owners of the premises while acting on instructions of the said Scholastica Wambui Kibathi.

10. As a result, the subtenants declined to pay rent owing to confusion as to whom they should pay between the applicant and Scholastica Wambui Kibathi’s agents. The applicant therefore decided to join the said Scholastica Wambui Kibathi as an interested party herein.

11. It is pleaded that the applicant was losing rent and goodwill everyday which might irreparably ‘bleed’ it out as a result of interference and threatened eviction of subtenants.

12. The application is opposed through the replying affidavit of the intended interested party/Respondent sworn on 24th August 2021 wherein it is deposed that the applicant lacks legal standing to sue as he is a complete stranger to her.

13. It is the Respondent’s contention that the suit is predicated upon a matrimonial property dispute between he applicant and a director of the landlord and as such is improperly before this Tribunal which has no jurisdiction.

14. The Respondent contends that it is improper to enjoin her in this matter as sought by the applicant deposing that she purchased, the suit property from Akiba Limited as per annexure ‘SWK-1’.

15. She admits having instructed her advocates to serve notice to vacate upon occupants of the suit premises as she intended to utilize the property for her own use. The notice is marked ‘SWK-2’.

16. The Respondent deposes that she never received any response to the said notice to vacate and was shocked to receive the instant application raising all manner of accusations and flimsy reasons to deny her occupation of the property.

17. The Respondent contends that the occupants heeded the notice and vacated the premises by 31st July 2021 as evidenced by annexure ‘SWK-3’. She took possession and fenced the suit property as evidenced by annexure ‘SWK-4’.

18. The Respondent denies sending agents to harass the occupants and states that she never demanded payment of rent from them.

19. The application was directed to be disposed of by way of written submissions. Both the applicant and Respondent’s counsels filed their respective submissions. I shall consider the submissions together with the issues for determination.

20. The issues for determination in respect of the said application are:-a.Whether the proposed interested party/Respondent ought to be joined in this matter.b.Whether the applicant/tenant is entitled to the injunction order sought against the Respondent.c.Who is liable to pay costs of the application?

21. The application is brought under section 12(4) of Cap. 301, Laws of Kenya which provides as follows:-“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and may make such order thereon as it deems fit”.

22. The applicant’s counsel submits on the authority of the Supreme Court of Kenya in the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others (2014) eKLR and Francis Kariuki Muruatetu & Another v Republic & 5 others (2016) eKLR that the Respondent ought to be enjoined as an interested party on the basis that she claims ownership of the property upon which the business premises sits and there are subsisting orders affecting the business premises.

23. He further cites the case of Pravin Bowry v John Ward & Another (2015) eKLR wherein the principles considered in an application for joinder of parties to a suit were restated.

24. According to the applicant, the instant suit relates to preservation and non-interference with the suit premises upon which the proposed interested party claims an interest and as such is bound to be affected by determination of questions to be settled and be bound by the result of the action.

25. On the other hand, the Respondent opposes the said application submitting that she became registered as owner of the suit property on 21st June 2021 having acquired it for valuable consideration.

26. It is submitted by counsel for the Respondent that the application does not meet the legal threshold for joinder of an interested party as the only law which allows such joinder is Rule 7 of the Constitutionof Kenya (Protection of Rights and Fundamental freedoms) practice and procedure Rules, 2013.

27. According to the Respondent’s counsel, such joinder can only be ordered on an interested party’s own application or by the court on its own motion. The Respondent’s counsel relies in support of the said proposition on the decisions in Kenya Medical Laboratory Technicians and Technologies Board & 6 Others v Attorney General and 4 others (2017) eKLR, Trusted Society of Human Rights Alliance v Mumo Matemu (Supra) and Francis Kariuki Muruatetu & Another v Republic & 5 Others (Supra).

28. The Respondent’s counsel submits further that the alleged interested party’s stake is all together a new issue being introduced before the court. It is further submitted that the interest of the Respondent was acquired in the pendency of the suit and was not existing at inception of the case. The Respondent is said not to have been aware of the suit and of any orders against the landlord.

29. According to the Respondent, the other prayers sought in the application are overtaken by events as she has possession of the premises from 31st July 2021 and any issues framed against the landlord have been overtaken by events because the premises no longer belongs to it.

30. Finally, it is submitted that the only orders the applicant can validly seek against the landlord are contempt of court orders which has been done vide H.C Miscellaneous Application no. E389 of 2021 against the landlord’s director one Winfred Wangari Karani Gitao which arises from this matter. As such the prayers sought in the application by the tenant/Applicant amounts to transferring the case from the landlord to the intended interested party contrary to paragraph 41 of the Supreme court Judgment in Muruatetu Case (supra) where it was held as follows:-“The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly effected but the primary impact is on the parties that first moved the court. This is true, more so in proceedings that were not commenced as public interest litigation (pil) like the proceedings now before us. Therefore, in every case, where some parties are enjoined as interested parties the issues to be determined by the court will always remain the issues as presented by the principal parties or as framed by the court from the pleadings and submissions of the principal parties”.

31. The jurisdiction of this Tribunal is conferred by the landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301, Laws of Kenya. The fist port of call in any proceedings before the Tribunal is to establish existence of a landlord/tenant relationship. The applicant herein does not claim to be a tenant of the Respondent/intended interested party and does not state what relief it intends to claim against the latter. The only complaint is that the latter issued notice to vacate against the occupants of the suit premises who were the applicant’s subtenants. Instead of the subtenants challenging the said notice, they complied and vacated the suit premises as a result of which the intended interested party took vacant possession are fenced it. The said depositions have not been controverted by way of further affidavit by the applicant.

32. In absence of a landlord/tenant relationship between the applicant and the intended interested party, this Tribunal cannot determine any attendant dispute which is for a different forum. I am guided in this regard by the decision in the case of Pritam v Ratilal & Another (1972) EA 560 where it was held as follows:“As stated in the landlord and tenant (Shops, Hotels and Catering Establishments) Act itself, it is an Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. Therefore, the existence of the relationship of landlord tenant is a pre-requisite to the application does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction” (emphasis mine).

33. In the premises, I agree with counsel for the intended interested party that this is not a proper case for joinder of the Respondent as the test laid down in the cited Supreme court decisions have not been met. I entirely agree with her submission that an application for joinder as an interested party can only be made by the person desiring to be so enjoined and not by any other party or person. I therefore refuse to exercise my discretion in favour of the tenant/applicant.

34. The prayer for joinder having failed, the one for injunction equally fails as it has no foundation to stand on.

35. In conclusion, the orders that commend to me are:-(i) The application dated 15th July 2021 is hereby dismissed with costs.(ii) The orders issued on 15th July 2021 against the intended interested party/Respondent are hereby discharged and/or vacated forthwith.(iii) The costs of the intended interested party/Respondent against the tenant/applicant are assessed at Kshs.30,000/- all inclusive.(iv) The matter shall proceed to hearing in respect of the original parties on a date to be fixed by them.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF APRIL 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kamunda for the Tenant/ApplicantMiss Ivy Kathungu holding brief for Thongori for proposed interested partyNgeru for the Landlord/Respondent.Further order: Further mention on 9/5/2022 to take directions on the remaining applications and the reference.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL