Samuel N. Mbiriga, Mwika Kanampiu, Jackson Mwirigi, Mickie Kigotho, Hasan Hamed, Adan Ibrahim, Franklin Kathurima & Ann Nyawira v Bikhabai Muthubhai Patel, Cyprian Iburli Ngaruro, Frank K Mwongera, Henry Kuthima & Quickline Actioneers [2021] KEELC 4630 (KLR)

REPUBLIC OF KENYA

IN THEENVIRONMENT AND LANDCOURT AT MERU

ELC APPEAL NO. 72 OF 2018

SAMUEL N. MBIRIGA.....................................................1ST APPELLANT

MWIKA KANAMPIU.......................................................2ND APPELLANT

JACKSON MWIRIGI......................................................3RD APPELLANT

MICKIE KIGOTHO.........................................................4TH APPELLANT

HASAN HAMED..............................................................5TH APPELLANT

ADAN IBRAHIM..............................................................6TH APPELLANT

FRANKLIN KATHURIMA................................................7TH APPELLANT

ANN NYAWIRA...............................................................8TH APPELLANT

VERSUS

BIKHABAI MUTHUBHAI PATEL.................................1ST RESPONDENT

CYPRIAN IBURLI NGARURO....................................2ND RESPONDENT

DR. FRANK K MWONGERA.......................................3RD RESPONDENT

HENRY KUTHIMA........................................................4TH RESPONDENT

QUICKLINE ACTIONEERS.........................................5TH RESPONDENT

(Being an appeal from the judgement of the Chief Magistrate’s

Court at Meru delivered on 29/11/2018 in CMCCNo. 808 of 2003)

JUDGMENT

1. The appellants were the plaintiffs in the lower court where they instituted a suit against the current respondents vide a plaint dated 24/9/2003 in Meru CMCC 808 of 2003 seeking the following orders;

1)Adeclaration that the plaintiffs’ are not tenants for the defendants on Plot No. Meru Municipality Block II/50 and in particular the 1st, 2nd and 3rd defendantsand as such,thedefendants are estopped from claiming any rent from them.

2)Apermanent injunction restraining the defendants from interfering with the plaintiffs’business on plot No. Meru Municipality Block II/50.

3)Costs and interest.

2. It was their case that on or about 18/9/2003, the 5th defendant acting on instructions from the 1st, 2nd, 3rd and 4th defendants visited the plaintiffs’ business premises and proclaimed for sale various properties belonging to the plaintiffs purporting to be executing the decree in MERU HCCC No. 124 of 1997. The plaintiffs contended that they were never parties to the aforementioned suit and when they learnt of the same, they inquired from the family of the deceased Yusuf Musa Mucheke and discovered that there existed a suit between the 1st, 2nd and 3rd defendants against Yusuf Musa Mucheke and others over the ownership of the suit land.

3. The plaintiffs learnt that the defendants were levying distress for rent yet the plaintiffs had always been paying the agreed rent to the estate of their deceased landlord through his widow.

4. During the trial, PW1 Samuel Ntarangwi Mbiriga(1st plaintiff/appellant) told the court that in the year 2002, he rented a house from one Time Karimi Yusuf through a verbal agreement where he agreed to be paying rent to her. He carried on his business on the suit land between year 2002 and September 2003. However, the 5th respondent came demanding that he pays rent to Henry Kuthima, the 4th respondent. He informed Time Karimi about the issue but she insisted that he continues paying rent to her.He obtained an injunction on 21. 11. 2003 and he continued paying rent to Time. He contended that he was never served with any court order appointing Henry Kuthima as a receiver.

5. PW2 Jackson Mwirigi, (3rd plaintiff/appellant) adopted his statement recorded on 17. 9.2018 as his evidence. He stated that he had leased business premises from Yusuf Mucheke whereby he has been undertaking a kinyozi business. He has always been paying rent to Time Yusuf, the wife of Yusuf Mucheke. On or about 18/9/2003, agents from the 5th defendant visited their business premises and proclaimed for sale various properties belonging to the plaintiffs. At no given time had they been served with any orders or documents in relation to the suit HCCC No. 124 of 1997 which the 5th defendants were executing and therefore did not concern him. He therefore states that he should be allowed to continue with his business unhindered.

6. DW1 Cyprian Iburi(2nd defendant/respondent) adopted the contents of his statement recorded on 26. 9.2018 as his evidence. He avers that the suit land is jointly owned by himself, Dr Frank Kamunde Mwongeria (3rd defendant/respondent) and Bikabhai Muthubhai (1st defendant/respondent) as joint leasehold proprietors. He stated that MACCU motors also claimed ownership of the suit land, which they rented to Yusuf Musa Mucheke who then proceeded to build temporary structures on the said parcel and sublet the same to several tenants. Yusuf was collecting rent from the said tenants until he passed on and his wife Time Karimi took over the rent collection.

7. In light of the claim of ownership of the suit land by MACUU MOTORS, a suit was instituted in High Court Civil Case No. 124 of 1997, where the court appointed a receiver to collect rent from the tenants and the said rent was to be deposited in court. A letter dated 7/11/1996 was sent by their then advocates Mukira Mbaya and Co to Mr. Yusuf Musa Mucheke warning him to stop collecting rent or any other income from the tenants he had sublet and to account to the proprietors all the rent and income received but he defied the letter. Through a court order dated 30/3/1998inHCCC No. 124 of 1997, S. K Mburu was appointed as a receiver in respect to the suit land but was later revoked by an order dated 11/6/2002 because of misappropriation of funds and Henry Kuthima was appointed thereafter as the receiver. The order dated 11/6/2002 was served upon all the tenants requiring them to remit their rent to the receiver.

8. The plaintiffs who were tenants on the suit premises defaulted and the receiver instructed Quickline Auctioneers to proclaim dues and unpaid rent which was totalling to Kshs. 658,000 by the month of September 2003. The plaintiffs however applied for an injunction in the suit CMCC 808/2003 which was granted.

9. The current respondents then appealed in Meru ELC No. 131 of 2003, which appeal was allowed vide the judgement delivered on 28/9/2018 by Cherono J. Thus the orders of injunction issued on 28/10/2003 were set aside. Despite the said judgement, the plaintiffs persisted in their defiance of failing to remit their rent to the receiver. Due to the said default the accrued rent arrears amounted to Ksh. 10,298,826 from the year 2003 to 2017. Time Karimi Yusuf, the wife of the deceased Yusuf Musa Mucheke continues to collect rent from the tenants occupying the various units on the suit land. DW2 Henry Kathurima the receiver manager corroborated the testimony of DW1.

10. Judgment was delivered in the lower court case no. Meru CMCC 808 of 2003 on 29/11/2018 where the court found that the defendants/respondents had given sufficient evidence to support their case. Further, the court found that the plaintiffs/appellants had not come to court with cleans hands and therefore the matter was dismissed with costs to the defendants.

11. Being aggrieved by the said judgment, the appellants have appealed to this court on 13 grounds which can be collapsed into the following points;

a. That the learned trial magistrate erred in law and fact in not appreciating the evidence adduced by the plaintiffs

b. That the learned trial magistrate erred in law and fact in failing to find that there was an appointed court official receiver, but the auctioneers were being instructed by other parties.

c. That the learned trial magistrate erred in law and fact in failing to appreciate that the impugned letters giving notices to collect rent were done on 11/11/2003 when the acts complained of by the appellants had already taken place.

d. That the learned trial magistrate erred in law and fact by failing to appreciate that the issue of ownership of the premises were germane to the appellants’ case and the 1st, 2nd and 3rd respondents were acting in violation of the said court orders in purporting to collect rent and levy distress for rent.

e. That the learned trial magistrate erred in law and fact by finding that the order given to the receiver manager on 11/6/2002 was served upon all tenants when there was no evidence of service.

Appellants Submissions

12. In their submissions before this court, the appellants argued that the respondents did not provide any orders of the court in HCCC 124 of 1997 authorizing the attachment, proclamation and execution against the appellants. They added that they adduced evidence showing that there existed no privity of contract between them and the respondents to warrant any levying of distress of rent stemming from a tenant landlord relationship.

13. The appellants denied having been served with any notice and therefore cannot be condemned by an order issued in a different suit that they were neither made aware of, nor were they parties thereof.

Respondents Submissions

14. The respondents on the other hand argued that the trial court considered all the evidence on record and the proclamation notice issued by the 5th respondent was in accordance with the Distress for Rent Act. Additionally, the appellants were given sufficient notice of the orders issued on 11/6/2002 in HCCC 124 of 1997 which were served upon them but they chose to disobey. By letters dated 7/11/1996 from the firm of Mukira Mbaya & Co Advocates, Yusuf was informed that the suit property was owned by the 1st, 2nd and 3rd Respondents.

Analysis and determination

15. As the first appellate Court, it is now well settled that the role of this court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See -Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123). I have carefully perused and analyzed the contents of the pleadings, proceedings, the decisions from various courts, grounds of appeal, as well as the submissions proffered by the parties. The main issue for determination is whether the appellants proved their case before the trial court. If they did, then the court would not hesitate to make a finding that the trial court erred in dismissing their case.

16. In Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR, the Court of appeal had this to say on the issue “burden of proof”;

“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “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.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. ……………………………The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side”.

17. In the case ofD.T Dobie & Company (K) Ltd Vs  Wanyonyi Wafula Chebukati [2014] eKLR the court cited with approval the decision of Denning J In Miller Vs Minister of pensions [1947] where it was held that;

“The degree is well settled. It must carry a reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say; we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case which the tribunal cannot decide one way or the other which evidence to accept, where both parties explanations are equally unconvincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

18. Looking at prayer (a) in the plaint, it is apparent that the appellants were identifying themselves as tenants, meaning they had a land lord. Who then was their land lord since they did not want to pay rent to the respondents?.

19. The definition of a land lord in the Black’s Law Dictionaryis; “someone who rents a room, building or piece of land to someone else, also termed lessor”. The simple and direct meaning of who a Land lord is can be framed as follows; “a person who owns a property, say a house or a building and he or she rents it out”. Having admitted that they were carrying on business on plot no. Meru Municipality Block 11/50, then it was incumbent upon the appellants to identify who the owner of the premises was.

20. The evidence adduced by PW1 on who the land lord was is captured as follows; “I rented a house from one Time Karimi Yusuf. We agreed I would be paying rent. The agreement was verbal. …………………The woman put up the building”. As for PW2, he just stated that; “I leased a business premises from Yusuf Mucheke……. .I have always been dutifully paying the monthly rent to one Time Yusuf the wife of Ysusuf Mucheke”.

21. The evidence adduced by these two witnesses certainly does not place the person known as Yusuf in that simple definition of who a land lord is. The Latin maxim; “quicquid plantatur solo solo cedit” means that “whatever is affixed to the ground belongs to the ground”.It appears that the premises on the suit land were put up by Yusuf and that was his basis of renting them out. However, the premises are affixed to the soil and pass with the title. Hence it was important for the appellants to identify the owner of the suit premises for their prayers in the plaint to succeed. Their evidence before the trial court did not in any way support their claim.

22. The appellants have also averred that they were not made aware of the orders issued in HCCC 124 of 1997 appointing the 4th respondent as the official receiver. On perusal of the record, PW1 admitted to the fact that the 5th respondent requested that rents be paid to the official receiver but he informed Time Karimi who told him to continue paying rent to her. It is therefore apparent that the appellants were aware of the court order in the High Court matter. In any event, the appellants were able to go to court file the case CMCC 808 of 2003 and even managed to obtain an injunction to halt the implementation of the High court order.

23. In paragraph 5 of their plaint, the appellants stated that the proclamation was in respect of the purported execution of the decree in HCCC NO. 124 of 1997. Thus by the time the appellants were filing their own suit, they were well aware of the existence of the High court order. They cannot feign ignorance of the same. In the aforementioned High Court order, the legal representative of Yusuf Mucheke is sued as the 2nd defendant. The order states that the 1st defendant who is MACUU MOTORS is removed from the possession of the plot no. Meru Municipality Block 11/50 until the suit is determined and the official receiver was appointed to collect rent from the aforementioned premises.

24. DW1 in his recorded statement gave a detailed account of how the appellants were informed on whom to pay rent to. The efforts made by the respondents to reach out to the appellants are well captured in his statement.It is my view that the evidence provided by the respondents was sufficient to support the claims that the appellants were aware of an ongoing matter where the suit property was the subject matter and therefore cannot claim otherwise. I again find no fault in the decision made by the trial court.

25. It is not lost to this court that a judgment was finally delivered in Meru ELC Appeal No. 131 of 2003 which set aside the injunctive orders issued on 28. 10. 2003 in Meru CMCC 808 of 2003. I find it necessary to extract the findings thereof as follows;

“From the replying affidavit sworn by Cypriano Iburi Ngaruro and the annexures thereto particularly the order issued by Mr. Justice Aga Etyang (as he then was) and Mr. Justice Kasanga Mulwa in HCC No. 124/97, it is clear that a receiver manager namely S.K Mburu and later Mr. Henry Kuthima were appointed to collect rents in the suit property plot number Meru Municipality/Block 11/50 until that suit is heard and determined. In a further supporting affidavit sworn on 8th October 2003 and filed on 9/10/2003 the respondents did not challenge the averments and the orders issued by the superior court. The orders of the high court in HCCC No. 124/97 were clear and self-explanatory that all rent payments to be collected by an appointed receiver manager. The respondents did not show that they have performed their obligation by paying rent to the appointed receiver manager or any other person authorized in law. Before issuing the injunction orders, the learned magistrate did not satisfy itself on the principles of injunction as set out in the focus classious case of Giella vs Cassman Brown & Co. Ltd 1973 E.A 358 as follows:

- An appellant must establish a prima facie case with a probability of success.

- An applicant must demonstrate that damages is not an adequate remedy and

- Where the court is in doubt the case may be decided on a balance of convenience.

In my view the restraining orders issued on 28. 10. 2003 are not guided by the principles of injunction as set out in the Giella case (supra) for setting aside. In the upshot, this appeal succeeds and the orders issued on 28. 10. 2003 are hereby set aside. The appellants shall have the costs of this appeal. It is so ordered”.

26. The analysis of the dispute as captured in the aforementioned judgment is crystal clear. However, the appellants have not deemed it fit to obey the same and instead, they have stayed put. It is quite apparent that the appellants have for decades rendered the orders in the High court case HCCC 124 of 1997 impotent and they want to perpetuate the same trend in the ELC Appeal case no 131 of 2003. I find no merits in this appeal which is hereby dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF JANUARY, 2021

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this Judgment was given to the advocates for the parties through a virtual session via Microsoft teams on 14. 10. 2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Judgment has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE