Wangari & 7 others v Ndichu & 3 others [2025] KEBPRT 169 (KLR)

Wangari & 7 others v Ndichu & 3 others (Tribunal Case E1097 of 2024) [2025] KEBPRT 169 (KLR) (3 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 169 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1097 of 2024

A Muma, Member

March 3, 2025

Between

Anne Wangari

1st Applicant

Beth Wanjala

2nd Applicant

Clinton Chabara

3rd Applicant

Titus Kinoti

4th Applicant

Jane Njoki

5th Applicant

Eric Nyairo

6th Applicant

Peter Karanja

7th Applicant

Dominiana Muli

8th Applicant

and

Paul Ndichu

1st Respondent

Elizabeth Njeri Ndichu

2nd Respondent

Janet Njanja Chuna

3rd Respondent

Moran Auctioneers

4th Respondent

Ruling

A. Parties and their Representatives 1. The Applicants are tenants of a development erected on Title Number Dagoretti/Kangemi/701 situate within Nairobi County (the “suit premises”).

2. The firm of K.A Nyachoti & Company Advocates represent the 1st to 8th Tenants and the 1st & 2nd Respondents in this matter.

3. The 1st to 3rd respondent are the children and inlaw of the registered proprietor of the Property now deceased and hence the beneficial owners of the suit premises.

4. The firm of Mbito & Company Advocates represents the 3rd Tenant.

5. The 4th respondent is a firm of auctioneers with instructions of the 3rd Respondent to levy distress for rent against the Tenants for non-payment of rent.

B. Background of the Dispute 6. The Tenants approached this Court vide a Reference and Application dated 8th October 2024 seeking Orders;i.certifying the matter as urgent;ii.a temporary injunction restraining the 4th respondent and its agents from proclaiming, attaching or selling the Tenants’ tools and letting out the suit remises to other Tenants;iii.compelling the 1st to 3rd Respondents to allow unlimited access to the suit premises;iv.The Respondents be restrained from unlawfully increasing rent, intercepting, intimidating and evicting the Tenants from the suit premises;v.That the OCS Kangemi police station assist in compliance of these Orders; andvi.The costs of this Application be provided for.

7. Having considered the Tenant’s Application, this court issued Orders dated 9th October 2024 granting prayers II and V above. Additionally, the Court ordered the Tenant to serve the Landlord for hearing on 25th October 2024 and file a return of service to that effect.

8. On 25th October 2024, this Court issued further Orders inter alia, that the Tenants deposit the rent payable to the Tribunal pending the hearing and determination of the subject matter.

9. Subsequently, the 3rd Respondent filed an Application dated 25th November 2024 seeking Orders vacating the Orders of this Court issued on 9th October 2024, mandatory injunction compelling the Tenants to vacate the suit premises within 30 days and an order restraining the Tenants from accessing the suit premises.

10. In opposition of the 3rd Respondents Application dated 25th November 202, the 1st Respondent filed a Replying Affidavit dated 19th December 2024.

11. Thereafter, the Tenants filed submissions dated 20th January 2024 and the 3rd and 4th Respondents dated 27th January 2024.

C. Tenants’ and 1st & 2nd Repondents’ Case 12. The Tenants’ Reference and Application is based on the grounds that the Landlord has threatened to levy distress for rent and has already instructed auctioneers to undertake the same. Additionally, the Tenants claim that the Respondents have threatened to evict them from the suit premises.

13. The 1st Respondent submits that the he is the sole owner of the suit premises since he erected them with the authority of his parents during their lifetime. He further submits that since their parents passed on, the 3rd Respondent has been collecting rent for the suit premises and has failed to account to him and their other siblings.

14. The 1st Respondent submits that the Tenants’ Application is grossly misconceived as the 3rd Respondent is not a landlord but a beneficiary of their mother’s estate and that all siblings have an equal right to benefit from the estate of their mother.

15. Further, the 1st Respondent claims that there is a succession cause pending in Nairobi Family Division in respect of the estate of their deceased mother being Succession Cause No. E686 of 2024 which was filed by the 3rd Respondent and that this succession cause should not affect the tenancy.

D. 3rd & 4th Respondent’s Case 16. The 3rd Respondent states that this Court lacks mandate to determine the beneficial ownership of an estate of a deceased and as such, this Court should evict the Tenants to pave way for the succession and distribution of the estate to the rightful beneficiaries.

17. The 3rd Respondent submits that despite this Court ordering the Tenants to pay rent directly to the Tribunal, the 1st & 2nd Respondents collected the said rent and deposited only half of it to the Tribunal.

E. Issues for Determination 18. Having carefully perused the Pleadings presented before this Honourable Tribunal by the parties. It is therefore my respectful finding that the issues for determination before this Tribunal are;a.Whether this Tribunal has the jurisdiction to hear and determine the Tenants’ Reference and Application dated 8th October 2024; andb.What orders can the court grant in light of the succession cause?

F. Analysis of the Facts in View of The Law a. Whether this Tribunal has the jurisdiction to hear and determine the Tenants’ Reference and Application dated 8th October 2024 19. The exercise of jurisdiction of this Court is pegged on the existence of a controlled tenancy relationship between the Parties. Section 2 of the Landlord and Tenant (Shops, Hotels and catering establishments) Cap 301 Laws of Kenya defines a controlled tenancy as:a.which has not been reduced into writing; orb.which has been reduced into writing and which—i.is for a period not exceeding five years; orii.contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; oriii.relates to premises of a class specified under subsection (2) of this section:

20. Having carefully perused the documents placed before this Court by the Parties herein, I note that there exists a controlled tenancy between the Tenants and the 1st to 3rd Respondent, as beneficial owners of the estate of their mother.

21. This Court notes that the 1st to 3rd Respondents have a dispute as to the owner of the suit premises with the 1st and 2nd Respondents claiming to have put up the suit premises with the blessings of their parents before they passed on. This Court further notes that the suit premises is the subject of succession proceedings ongoing at the High Court, Family Division.

22. In light of the above, this Tribunal is possessed of the requisite jurisdiction to hear and determine the matters herein to the extent of protecting the Tenants in the wake of threats of eviction and distress for rent by the 3rd Respondent.

23. It is also this Court’s opinion that the ongoing succession Cause and claim against the 2nd Respondent pending at the Environment and Land Court, ELC Case Number E386 of 2024 should not affect the Tenants’ occupation of the suit premises, provided that they meet their obligation of paying rent as and when it falls due.

b. What orders can this Tribunal grant in light of the succession cause? 24. Having established the existence of a tenancy relationship, I shall proceed to consider the legality of the Tenants and levying of distress for rent by the 3rd Respondent.

25. It is trite law that termination of a controlled tenancy should be procedural, and in line with Section 4 of Cap 301 which provides:2. A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.4. No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein:Provided that—i.where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated;ii.where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice;iii.the parties to the tenancy may agree in writing to any lesser period of notice.

26. The 3rd Respondent has instructed auctioneers to levy distress for rent and threatened to evict the Tenants on the basis that they have failed to pay rent for December 2024, January and February 2025. She further claims that the 1st and 2nd Respondents collected rent for December and remitted only half of the amount to the Tribunal contrary to this Court’s Orders issued on 25th October 2024.

27. The 3rd Respondent however failed to issue the Tenants with a notice of termination as required under Section 4 (4) above. The attempted eviction of the Tenants is thus illegal and unprocedural.

28. This Court notes that the Tenants’ were ordered to pay rent directly to the Tribunal, pending the hearing and determination of this matter. However, they proceeded to pay the same to the 1st and 2nd Respondents, who deposited half the amount, having deducted the expenses of managing the suit property.

29. Seeing as the succession cause is still pending and that there is a dispute among the Respondents as to who should control and manage the property, it is imperative that the Tenants pay rent into a joint interest earning account, which monies shall be released to the beneficiary(s) upon determination of the succession cause.

G. Orders 30. The upshot is that the Tenant’s Reference and Application dated 8th October 2024 are hereby allowed in the following terms:a.The 3rd Respondent’s Application dated 25th October 2024 is hereby dismissed;b.A joint interest earning Account be opened by the Advocates on record for the 1st & 2nd Respondents and the 3rd Respondent; K.A Nyachoti & Co. Advocates and Mbito & Company Advocates within 14 days of this ruling.c.The Tenants shall remain in the suit premises, pay rent arrears for January February and March by 31st March 2025 and continue to pay monthly rent to the joint interest earning account pending confirmation of grant in High Court Succession Cause No. E686 of 2024 and E047 of 2025;d.Monies paid to this Court be released to the joint interest earning account opened as per Order (b) above; ande.Each party to bear their own costs.

HON A. MUMA - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 3RD DAY OF MARCH 2025In the presence of Koech for the 3rd and 4th Respondents and Nyachoti for the Tenants and the 1st and 2nd Respondents.HON A. MUMA - MEMBERBUSINESS PREMISES RENT TRIBUNAL