Evans & 2 others v Prime Choice Motors Ltd (Tribunal Case E168 of 2023) [2023] KEBPRT 1146 (KLR) (4 December 2023) (Ruling)
Neutral citation:
[2023] KEBPRT 1146 (KLR)
Republic of Kenya
Tribunal Case E168 of 2023
M Makori, Member
December 4, 2023
Between
Elizabeth Wanjira Evans
1st Applicant
Christine Wangari
2nd Applicant
and
Mary Wanjiku
Landlord
and
Prime Choice Motors Ltd
Tenant
Ruling
1.The applicants filed an application dated 12/9/2023 seeking leave to levy distress against the Tenant/Respondent for a total amount of Kshs 15,600,000/=
2.The Tenant/Respondent file a Replying Affidavit dated 3/10/2023 and denied the averments of having arrears of Kshs 15,600,000/=. He averred the rent payable is Kshs 19,000/= and which he has constantly paid without failure.
3.In what I would call a sudden turn of events, Mary Wanjiku who is nabbed as the Landlord and whose name appears on all the leases produced swore an affidavit in opposition of the 1st Applicant’s application dated 12/9/2023.
4.In her affidavit labeled “Supplementary Affidavit” all the averments in the affidavit do not seem to supplement the Applicants’ case but it rather tears it down and/or apart.
5.According to Mary Wanjiku who is also labeled as the landlord, the valid lease is one dated 17/9/2004 and that the lease produced by the 1st Applicant is a forgery as she never even executed it.
6.Though the record seems untidy on the part of the applicants and Landlord the only issue that commends itself for determination is whether the Applicant’s application to levy distress against the Tenant/Respondent is merited?
7.Section 4(1) of Cap 301 provides that no tenancy shall be terminated, or no term or condition, or right or service enjoyed by the tenant shall be altered otherwise than in accordance with the provisions of the Act.
8.The Act further provides for the grounds on which the Landlord may seek to terminate the tenancy in Section 7. The grounds stated under this provision and which are applicable herein include; -i.that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;ii.that the tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant’s use or management of the premises comprised in the tenancy; andiii.that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises.
9.That it is the Applicant’s contention that upon nonpayment of Rent arrears by the Tenant/Respondent, she decided to levy distress over the suit property. The right to levy distress is reserved under section 3 of the Distress for Rent Act, Cap 293 of the Laws of Kenya, which provides; -
10.In seeking to make the appropriate orders in view of the foregoing, I am guided by section 12(1)(e) of Cap 301 which grants the Tribunal power; -
11.Before concluding this ruling, I wish to adopt what the superior court stated in the case of Samuel Kipkori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR at paragraphs 9 and 12 as follows: -
12.A contradicting record exist from parties that should essentially be speaking from the same side of story. What this court is yet to resolve is what would be the motivation of parties to present contradictory evidence on the same issue.
13.Mary Wanjiku account corroborates that of the Tenant/Respondent while the Applicants’ account stands disputed from two fronts. From the Tenant/Respondent and by Mary Wanjiku.
14.The contradicting accounts calls into question the locus of the Applicants as compared to the position that Mary Wanjiku holds. From the purported leases that have been presented, it is Mary Wanjiku who executes them.
15.In the Supplementary Affidavit dated 3/10/2023 Mary Wanjiku deponed that she has always been the landlord for all that parcel of land known as Nakuru Municipality Block 4/259 which therefore diminishes all the mandates the other parties have in claiming as landlords.
16.The upshot of my analysis and interrogation of material before court is that the Notice of Preliminary Objection dated 4/10/2023 is merited and allowed.
17.I as thus strike out the notice of Motion Application dated 12/9/2023 with costs to be borne by 1st and 2nd Applicants.
RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 4TH DECEMBER, 2023.HON. MIKE MAKORI (MR.) - MEMBER 4.12.2023In the presence of;Mr. Mureithi for the Tenant/RespondentMs. Wanjera – the landlordMr. Waiganjo for the 3rd Applicant