Vikiru v Able Fielders Ltd Property Management [2024] KEBPRT 204 (KLR)

Vikiru v Able Fielders Ltd Property Management (Tribunal Case E003 of 2022) [2024] KEBPRT 204 (KLR) (23 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 204 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E003 of 2022

Gakuhi Chege, Chair & J Osodo, Member

February 23, 2024

Between

Nicholas Vikiru

Applicant

and

Able Fielders Ltd Property Management

Respondent

Ruling

1. On 15th September 2023, this Tribunal ordered its Rent Inspector to visit the suit premises to find out if it was occupied and if any business was being carried out therein by any of the parties or their tenant(s). The report was to be filed within fourteen (14) days thereof and the status quo obtaining then was to be maintained by all the parties with the OCS, Kakamega police station ensuring compliance.

2. On 11th October 2023, the matter came up for mention and the Tribunal was informed that the inspection had not been carried out and it was therefore directed that the same be conducted with or without the presence of either party. The matter was therefore fixed for mention on 7th November 2023, for compliance.

3. On 7th November 2023, the Tribunal was informed that there was a case before the Kakamega Environment & Land Court coming up for hearing on 24. 11. 2023 but Counsel for the landlord stated that his client was not a party in the said case. The matter was thus ordered to be mentioned on 21. 11. 2023.

4. The inspection was carried out on 27th October 2023 and the report filed revealed that the premises was locked as per the photos annexed. The same were said to have been locked by the tenant using padlocks and there was no business being carried out therein.

5. On 21st November 2023, the matter came up for mention when the inspection report was read and parties were granted leave to make copies thereof.

6. On 28th November 2023, the landlord filed an application seeking that the Respondent/Nicholas Vikiru be ordered to remove the padlocks or reopen the suit premises forthwith failing which, the landlord be authorized to break into the premises and take possession thereof. He also prays that the OCS, Kakamega police station does ensure compliance.

7. The landlord contends that the suit premises belongs to him and was under the management of Able Fielders Limited. He also contends that the Respondent vacated the suit premises but left the doors thereof locked. He thereafter refused to open the premises despite the fact that he is not occupying or utilizing the same. As a result, the landlord had suffered great loss and damage. He relies on the Inspection Report filed herein and photographs marked “HO-1”.

8. On 16th January 2024, the Application was argued orally and the Respondent/Nicholas Vikiru argued that the Applicant was not his landlord as the premises were given to him by Aggrey Vikiru who is the Interested party herein. He stated that he has been paying rent and was using the premises as a store for his goods. He alluded to an ELC matter pending before the Kakamega Court and stated that he does not pay rent to the registered owner of the premises, one Timothy Vikiru. He prayed that he be allowed to give back possession of the premises to Aggrey Vikiru who is his landlord.

9. On the other hand, Aggrey Vikiru stated that he has been in possession of the shop for the last 27 years. Timothy Vikiru was his younger brother and that the shop was given to him by his father who is deceased. The ELC case at Kakamega was about the deceased’s properties. He stated that he fell sick during Covid-19 pandemic and gave the premises to his brother one Nicholas Vikiru. The Interested party stated that he wished to continue using the premises as he had one other shop in the premises and wished to await determination of the ELC Case.

10. In response, Counsel for the landlord argued that the premises were locked and his client needed to use it. There was no evidence of payment of rent and that the ELC had dismissed an application for injunction in ELC Case No. E011 of 2021 between Aggrey Vikiru vs Timothy Vikiru which was a reported decision in the Electronic Kenya Law Reports.

11. We have examined the court record and note that the landlord/Applicant ought to be allowed to take possession of the suit premises which is currently not in use by either of the parties for business purposes as per the Rent Inspector’s Report filed herein.

12. There is no dispute that the Applicant is the registered owner in respect of the suit premises which fact was acknowledged by the Tenant and the Interested party. He is thus entitled to all rights and privileges appurtenant to such registration as per Section 24 of the Land Registration Act, 2012 inclusive of the rental income and possession thereof.

13. We have not been shown any order of a Superior court cancelling the said registration of the Applicant’s title. The parties are all siblings who appear to be engaged in a pending litigation over the estate of their deceased father but until the said title is cancelled, the Applicant is entitled to reap the benefits of his registration as proprietor.

14. Section 2 of Cap 301, Laws of Kenya defines a landlord to mean in relation to a tenancy, “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.”

15. Being the registered owner of the suit premises, we find and hold that the Applicant Timothy Vikiru is the landlord of the suit premises. In absence of payment of rent by the Tenant herein, the landlord is entitled to possession of the suit premises in line with Section 12(1)(e) of Cap 301, Laws of Kenya which gives this Tribunal power to issue an order of possession in favour of a landlord.

16. In the premises, the application dated 28th November 2023 is allowed as prayed.

17. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap 301, Laws of Kenya. In view of the relationship of the parties herein, who are siblings, we shall order that each party bears own costs of the suit.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF FEBRUARY 2024. HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON. JOYCE OSODO - PANEL MEMBERDelivered in the presence of;Hilary Onguko for Able Fielders Limited/RespondentTimothy Vikiru/Landlord/Applicant