Mereka t/a Mereka & Co Advocates v Njeri & 2 others (Tribunal Case E070 of 2025) [2025] KEBPRT 397 (KLR) (18 August 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 397 (KLR)
Republic of Kenya
Tribunal Case E070 of 2025
CN Mugambi, Chair
August 18, 2025
Between
David Mukii Mereka T/A Mereka & Co Advocates
Applicant
and
Meshack Githiri Njeri
1st Respondent
Couture Properties Ltd
2nd Respondent
James Kamau Waitiki
3rd Respondent
Ruling
1.The Tenant’s Amended notice of motion dated 21.01.2025 has sought orders that;a.An order of injunction do issue restraining the 1st Respondent from interfering with the Tenant/Applicant’s quiet possession of their lease offices on LR No 1/1228 Chaka Place 1st Floor, Northern Wing, the part occupied by the Applicant (hereinafter the suit premises) pending the hearing and determination of the Reference.b.The 1st Respondent be injuncted from proclaiming, auctioning or in any way interfering with the (Applicant’s) suit premises.c.The OCS Kilimani Police station does provide security for purposes of compliance with the orders sought.
2.The Tenant in the said Application has also sought for the following declarations;a.That the 2nd and 3rd Respondents held themselves as having ostensible authority to act on behalf of the 1st Respondent and the Tenant cannot be faulted for making rent deposit to the 2nd Respondent on the instructions of the 3rd Respondent.b.That the Tenant having paid the deposit of Kshs 520,662/= to the 2nd Respondent he is not bound to pay another security deposit as demanded by the 1st Respondent.c.That the 1st Respondent do give credit towards rent due for the amount of Kshs 258,084/= being the pro-rated refund after the 1st Respondent reduced the space occupied by the Tenant from 1622 square feet to 818 square feet.d.That the 1st Respondent do deliver a registered lease on the space occupied by the Applicant/Tenant.e.that the Respondents be condemned to pay costs jointly and severally.
The Tenant’s depositions
3.The Tenant’s affidavit in support of his Application may be summarized as follows;-a.That the Tenant executed a letter of offer for 1622 square feet for a term lease of 6 years from 1.06.2022 and on 19.5.2022 paid the sum of Kshs 520,622/= to the 2nd Respondent being the security deposits.b.That the Tenant subsequently reduced the occupied space to 818 square feet and requested for the refund of the pro-rated deposit in the sum of Kshs 258,084/=.c.That by a letter dated 28.4.2024, Counsel for the 1st Respondent sent the lease document for execution on behalf of the 1st Respondent and paid the legal fees but the Tenant is yet to receive the registered lease.d.That by a letter dated 18.11.2024, the 1st Respondent wrote to the Tenants advising them that the 3rd Respondent was no longer authorized to conduct business on behalf of the 1st Respondent.e.That by a letter dated 9.12.2024, the Tenant was informed by the 1st Respondent that the request for the pro-rated deposit refund had been declined because the same was not paid to the correct company.f.That the Tenant paid the 1st Respondent the sum of Kshs 87,312/= on 8.01.2025 which took into account the sum of Kshs 284,084/=.g.That on 16.1.2025, the 1st Respondent sent to the Tenant a demand for Kshs 563,961.84/=.h.That it is the Tenants position that the 3rd Respondent who is a director of the 2nd Respondent and a son to the 1st Respondent made the Tenant to assume that he had the authority to deal with the matter as he had.i.That the Tenant was not privy to the dealings between the Respondents and he cannot therefore be held liable if the security deposit payment was made to the wrong party.
The 1st Respondent’s Replying affidavit
4.The Replying affidavit sworn by the director of the 1st Respondent may be summarized as follows;-a.That he has never had any communication with the Applicant leasing the suit premises and neither has he instructed the firm of Makalla Law LLP to act for the 1st Respondent in the leasing of the suit premises.b.That equally, the 1st Respondent never instructed the firm of Makalla Law Advocates LLP to draw any letter of offer or lease agreement with the 2nd Respondent as an agent who could secure any deposit or rent on behalf of the 1st Respondent.c.That the 1st Respondent is not aware of any letter of offer and/or any payments made by the Applicant and neither is he aware of any lease document.d.That the letter dated 18.11.2024 at paragraph 5 of the Tenant’s supporting affidavit was a blanket communication to Tenants and was sent unnecessarily to the Tenant.e.That the 1st Respondent has never communicated that the 3rd Respondent was an employee of the 1st Respondent.f.That the 1st Respondent never received any money from the Tenant and cannot therefore refund any money to the Tenant.g.That the Tenant refused to pay rent for the first quarter.h.That the Applicant never received any representation from the 1st Respondent that the 3rd Respondent was an employee of the 1st Respondent.i.That the 1st Respondent has waived the rent for the first quarter paid to the 2nd Respondent but the Tenant has however been asked to pay the deposit reimbursement on the termination of the lease.j.That the lease presented by the Tenant is questionable because the signature of Mr. Evanson Kamau Waitiki was forged on it and no deposit on account of the said lease has been made into the accounts of the 1st Respondent.k.That the 1st Respondent was surprised to learn that the Applicant and other Tenants had not been paying deposit and rent to the 1st Respondent’s account but rather that the 2nd Respondent, a company owned by the 3rd Respondent had been fraudulently receiving the deposit and rent purportedly on behalf of the 1st Respondent.l.That consequently, the 1st Respondent issued to the Tenants the letter dated 18.11.2024.m.That the Applicant made the wrong assumption that the 3rd Respondent had instructions to act on behalf of the 1st Respondent due to his biological association with the 1st Respondent’s director while the 1st Respondent had never made any representation that the 3rd would represent it in this transaction.n.That after paying the deposit and the rent payment for the first quarter 2022, the Tenant/Applicant went ahead to pay rent to the 1st Respondent, the 1st Respondent had never supplied his account details to the Tenant/Applicant.o.That at an appropriate time, the 1st Respondent will apply to join the firm of Makalla Law Advocates LLP as third parties in these proceedings for acting without the instructions of the 1st Respondent.p.That the Applicant having been made aware of the fraudulent acts of the 2nd and 3rd Respondents, he had an obligation to regularize his lease.
The Tenant’s Supplementary Affidavit
5.The further affidavit sworn by the Applicant on 24.4.2025 may be summarized as follows;-a.That the 1st Respondent’s affidavit is defective as it was sworn prior to the hearing of the matter on 20.3.2025 and ought therefore to be struck out.b.That the Applicant was shown the suit premises by one Mr. Omondi caretaker and a director of M/S Target Homes the agents of the Landlord and given a letter of offer dated 4.05.2022.c.That the 3rd Respondent introduced himself as the son of Mr. Evanson Kamau Waitiki and a manager of the suit premises and the Tenant again signing the letter of offer did pay to the 2nd Respondent the security deposit sum of Kshs 520,662/=.d.That the 3rd Respondent held himself out as the legitimate representative of the Landlord, Ms. Makalla Law held herself out as Counsel for the Landlord and the payment to the 2nd Respondent was therefore made in good faith.e.That in the beginning of 2024, the 3rd Respondent introduced the Tenant to the director of the 1st Respondent and his wife further cementing the Tenants belief that the 2nd and 3rd Respondents were representatives of the 1st Respondent.f.That the letter dated 18.11.2024 has never been retracted by the 1st Respondent.g.that the 1st Respondent locked the Tenants premises on 3.02.2025 and the Tenant had to obtain orders from the Tribunal for the opening of the premises.h.That the lease is valid and the 1st Respondent should proceed to register it as there is nothing to show any irregularity in the said lease.i.That the Applicant did due diligence as a reasonable person having gone through the Estate agent of the 1st Respondent, the caretaker Mr. Omondi and Makalla Law. It is the 1st Respondent who failed to do due diligence in respect of substantial payments made to the 2nd Respondent.j.That the 1st Respondent’s bank details were provided to the Tenant by the 3rd Respondent.k.That the Applicant has already paid the rent of Kshs 345,397/= for the rent of April, May and June 2025.l.That the Applicant has filed a claim in the Small Claims Court for the recovery of the money paid to the 2nd Respondent and upon recovery, the money would/will be paid to the 1st Respondent.
Analysis and determination
6.The only issue that arises for determination in this Application is whether the Tenant is entitled to the orders sought in his said Application.From the documents presented, the relationship between the parties dates back to the year 2022. The statement of account attached to the 1st Respondent’s affidavit indicate that the tenancy of the Applicant is for the period 1st June 2022-31.5.2028. These dates coincide with the date shown in the agreement annexed to the Applicant’s supplementary affidavit. The lease at clause 7 thereof required the Tenant to pay a security deposit and service charge amounting to Kshs 520,622/=. I have seen an Application for funds transfer in favour of the 2nd Respondent for the sum of Kshs 520,662/= and the purpose of the remittance is indicated as “Rent security deposit.”
7.It is clear from the pleadings and the evidence presented by way of affidavits that the Tenant is in possession and use of the suit premises and has been in such possession since the year 2022. It is also apparent that the Tenant has been paying rent to the 1st Respondent. It is also now not disputable that the Tenant came into possession of the suit premises through the 3rd Respondent who is a director of the 2nd Respondent and a son of Mr. Waitiki, director of the 1st Respondent.
8.There does not seem to be any dispute on the rent and the only issue that is causing the rift between the Tenant and the 1st Respondent is the security deposit and the pro-rated refund the Tenant now claims on the security deposit.
9.On this issue of the security deposit, there is evidence that the Tenant paid the same to the 2nd Respondent on the instructions of the 3rd Respondent. These payments were made in the year 2022 on the basis of which the Tenant took up possession of the premises. The 1st Respondent who owns the premises does not seem to have taken any steps in disputing the Tenants occupation of the premises until January 2025 when it issued a demand for the payment of the security deposit.
10.The 1st Respondent has denied any dealings with the Tenant and has further denied instructing any Advocate to act for them in this transaction and particularly the law firm of Makalla Law LLP. The 1st Respondent has also denied knowledge of any payments made to the 2nd Respondent and has further stated that the Tenant never received any representation from the 1st Respondent that the 2nd and 3rd Respondents were its agents. Amidst all these denials, the Landlord continuous to invoice the Tenant for rent and the Tenant continues to pay the said rent.
11.In order to fully determine this issue, the Tribunal needs to establish whether there existed at any one time or at the material time, the 2nd and 3rd Respondents were agents of the 1st Respondent, whether the 3rd Respondent was the manager of the suit premises and whether the 2nd and 3rd Respondents received the payment on the security deposit on behalf of the 1st Respondent as such agents.
12.In view of the very strong denial put forth by the 1st Respondent, it is not possible at this interlocutory stage to make any conclusive determination as to the nature and legal consequences of the relationship between the Tenant and the 2nd and 3rd Respondents on one hand and the 1st Respondent on the other hand. This determination will require a full hearing of the Reference filed by the Tenant.
13.The 1st Respondent’s position is that the Tenant occupies the suit premises as a result of fraud which the 1st Respondent was not aware of. This is a serious issue which cannot be fully ventilated by way of this Application especially in view of the undisputed fact that the 1st Respondent continues to receive rent from the Tenant on the basis of the Tenant’s alleged illegal entry into the premises.
14.The Tenant in this case has stated that he was shown the suit premises by an agent of the Landlord, that he dealt with a caretaker of the Landlord and the 3rd Respondent who held himself out as the manager of the suit premises. For good measure, the firm of Makalla Law LLP was thrown in as Counsel for the Landlord. If the Tenant dealt with the above persons fraudulently, it is not clear what benefits he stood to gain by the fraud and prima facie, I would say at this juncture any reasonable man would have done as much as the Tenant in this case did, deal with the alleged representatives of the 1st Respondent, But again, as I have stated earlier, these are not conclusive findings absent of a hearing.
15.I am in the circumstances convinced that the Tenant has established a prima facie case to warrant the grant of the injunctive relief sought.
16.The Tenant has a law firm with a complement of ten members of staff. The Tenant has also deponed in his supporting affidavit that he is an Advocate of around forty years’ practice and the 1st Respondent’s actions if allowed would taint his record as an Advocate, expose him to loss of clients and he would thereby suffer irreparable loss. I agree with the Tenant that if the orders sought are not granted, he would suffer irreparable loss.
17.The balance of convenience in this mater also tilts in favour of the Tenant who is currently in possession of the suit premises and continues to pay rent.
18.The upshot of the above is that I am satisfied that the Tenant has satisfied the requirements for the grant of injunctive relief in line with the requirements set out in the case of; Giella v Cassman Brown [1977] EA 358 and the case of; Ngurumann Ltd v Jan Bond Nielsen & 2 others [2014] eKLR.
19.Consequently, I will grant prayers (c), (d) and (e) of the notice of motion dated/Amended on 27.1.2025.
20.The declarations sought at prayer (f) of the Amended notice of motion dated/Amended on 27.1.2025 together with the Tenant’s Reference will be determined upon a full hearing of the Reference.
21.The costs of this Application will abide the outcome of the Reference.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF AUGUST 2025HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Nadida For the 1st Respondent and Ms. Njoroge for the TenantCourt: Reference fixed for hearing on 15.10.2025. Parties to file their compliance documents before then.