REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7^TH & 8^TH FLOOR

TRIBUNAL CASE NO. 49  OF 2021  (NAIROBI)

NAOMI NJOKI NJAU...................................................TENANT/RESPONDENT

VERSUS

FRANCIS MBIYU S. NGURU...............................LANDLORDS/APPLICANTS

GRACE WANJIKU NGUMI                                                                                      

 ESTHER NGUHI MIRIE (as the legal representatives of the late                         

 LOISE WAMBUI NGURU)                                                                                       

RULING

1. By a motion dated 15^th January 2021, the Applicants are seeking for an order that the termination notice served upon the Tenant/Respondent be deemed to have taken effect and for attachment of her goods in recovery of arrears of rent.

2. The application is supported by the joint affidavit of the three (3) Applicants sworn on 20^th December 2019 and the grounds on the face thereof.

3. According to the Applicants, the Respondent is a tenant in the suit premises paying a monthly rent of Kshs.7000/- in respect of plot no. 21, Karuri Market, Kiambu county and that since 1993, she had expressed an interest to purchase the property at a price of Kshs.500,000/- from the deceased’s family which was accepted.

4. The Respondent paid a deposit of Kshs.250,000/- towards the purchase price and in 1997, she called a meeting  of the deceased family in which it is said to have stated that she was no longer able to complete the purchase and wished to rescind the agreement.  This is said to have been accepted.

5. It is alleged that an agreement was reached that the Respondent would remain a tenant paying a monthly fee of Kshs.7,000/- which would be offset from her deposit aforesaid.

6. After exhausting the said deposit in August 2014, the Respondent is alleged to have refused to pay rent which had accumulated to Kshs.420,000/.

7. Despite being served with demand notices marked “FMSN 1” she failed or refused to clear the arrears and on 17^th May 2019, the Respondent was served with a notice to terminate tenancy marked “FMSN2” with effect from 1^st  August 2019.

8. According to the Applicants, no reference was filed to oppose the said termination, neither has the tenant paid the rent arrears as a result of which the instant proceedings were filed.

9. In response to the application, the Respondent filed a replying affidavit sworn by her on 10^th March 2021 stating that the Applicants had come to court with unclean hands and had concealed material facts or misrepresented the same contrary to provisions of Cap. 301, Laws of Kenya as there was no Landlord/Tenant relationship.

10. According to the Respondent, the Landlord/tenant relationship ceased on 4^th May 1993 after she bought the suit premises as per the sale agreement marked “NNN1”.

11. The Respondent contends that the application is before the wrong court after the issue was dealt with by the county Government of Kiambu and their advocate was duly notified vide a letter dated 12^th June 2019 marked “NNN2” and as such this court has no jurisdiction to hear the matter.

12. The 1^st and 3^rd Applicants filed a joint further affidavit stating that the suit plot was owned by their mother one Loise Wambui Nguru who died in 1962 and that her succession Cause was initiated in 2017 vide Cause no. 99 of 2017 at the Chief Magistrate’s court in Kiambu as per annexture FNN 1.

13. It is the Applicant’s case that upto 24^th April 2019, the plot remained in the name of Loise Wambui Nguru and was only transferred  on the said date to them pursuant to the said Succession Cause as per annextures FMN 2(a) and (b), FMN3, FMN4 and FMN 5(A) and (b) annexed to the further affidavit.

14. According to the Applicants, the agreement was entered into between the Respondent and Stephen Njoroge Mirie who had no capacity to sell the property as no succession matter had been instituted and the same was a beneficial interest to many other beneficiaries who did not consent to the sale.

15. The Applicants depose that there was a subsequent revocation agreement on 1^st September 1996 marked FMN 6(a) and (b) and that the Applicant having failed to pay the balance opting out of the sale agreement cannot claim ownership.

16. The Applicants contend that the Respondent is trying to convert this matter into a property ownership dispute and ought to file the same in the proper court to enforce her claimed rights.

17. Based on the foregoing pleadings, I am now called upon to determine whether the Tribunal has jurisdiction to grant the orders sought and thereafter whether the Applicants are entitled to the reliefs sought in the proceedings.

18. It is not in dispute that on 4^th May 1993, a sale agreement was entered into between the Respondent and one Stephen Njoroge Mirie in respect of the suit premises and a sum of Kshs.200,000/- was paid as deposit of the agreed consideration thereof.

19.  On 12^th June 2019, the County Government of Kiambu which appears to be the allocating authority of the suit property wrote to M/S Kimani Charagu & Co. Advocates stating that it recognized the sale transaction aforesaid and the attempted eviction of the Respondent was a scheme to defraud her.

20. Annexed to the replying affidavit are proceedings dated 15^th August 2002 before the Senior Chief, Kiambaa Location relating to the plot ownership dispute wherein the claim by the Respondent was upheld by elders in what I assume was an informal arbitration panel aimed at alternative dispute resolution.

21. The Applicants on their part allude to revocation of the sale agreement dated 4^th May 1993 vide annexture FMM 6(a) which did not resolve the matter.

22. There is no evidence presented before me that the sale agreement entered into on 4^th May 1993 which the Applicants term as null and void has ever been declared so by any court of competent jurisdiction neither is there any evidence that the Respondent has ever since 4^th May 1993 paid rent to the Applicants or any other person to create a fresh Landlord/Tenant relationship.

23. In the premises, I find and hold that the dispute herein is a land ownership claim which this Tribunal has no jurisdiction to adjudicate upon.

24. In line with the Locus Classicus case of Owners of Motor Vessel “Lilian” S – vs- Caltex Oil (Kenya) Limited (1989) e KLR, I proceed to down my tools and dismiss the application dated 15^th January 2021 for want of jurisdiction.

25. The Respondent is awarded costs of Kshs.20,000/- against the Applicants.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10^TH DAY OF AUGUST 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Charagu for the Applicant’s

Tenant/Respondent present in person