[2022] KEBPRT 87 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E011 OF 2021 (EMBU)

ATANASIO NDWIGA NJUE............................APPLICANT/TENANT

VERSUS

PATRICK NJIRU KURIA.......................RESPONDENT/LANDLORD

RULING

1. Through a motion dated 6th August 2021, the tenant is seeking for an order that pending the hearing and determination of the claim, the Respondent be barred by way of temporary injunction from evicting, threatening or interfering with his leased premises comprised in plot no. 1172/916, Embu.

2. The application is supported by an affidavit sworn on even date by the applicant and the grounds on the face thereof.

3. On or about 11th January 2020, the tenant leased the premises from the landlord/Respondent but the same was not reduced into writing. A goodwill of Kshs.1. 5 million is said to have been paid.

4. The tenant operates a bar and restaurant business known as ‘Billionare Lounge’ as per licences annexed to the affidavit marked ‘ANN2’.

5. On or about 1st August 2021, the landlord demanded payment of Kshs. 2. 2 million from the tenant by 15th August 2021 failing which the landlord would dump sand, ballast, building stones so as to deny him access to the premises.

6. It is the Applicant’s case that there were mandatory notices for eviction. The Respondent is also alleged to have used his influence to have KPLC and Ewasco disconnect power and water to the premises.

7. The tenant has extensively developed the leased premises by putting up front butchery, concrete counters, kitchen walls, tiles and have heavily invested on drainage and other Ministry of Health protocols to the tune of Kshs.10 million. He therefore stood to suffer losses as he had not realized the fruits of his investment. He had over 30 employees in the said business.

8. The application is opposed through the replying affidavit of the Respondent sworn on 25th August 2021, wherein he deposes that the applicant is a trespasser on the property.

9. According to the landlord, the property was leased to one Paul Theuri Mutahi in terms of annexture ‘PKN-1’. Consequently, the premises may have been unlawfully sublet without the landlord’s consent.

10. The landlord deposes that the Applicant has never paid rent to him which explains why no evidence has been tendered in that regard.

11. According to the landlord, the Applicant owed Kshs.3,720,000/- in rent equivalent which continued to accrue. The applicant is alleged to have come to court with unclean hands and ought not be heard.

12. The landlord deposes that he relies on the property as a source of income and allowing the applicant to occupy the same without paying rent is unfair and unreasonable.

13. He denies threatening the applicant with eviction but admits telling him to leave since he is a trespasser who unlawfully came into the property through the bonafide tenant. The latter was not paying rent.

14. The application was ordered to proceed by way of written submissions. Both parties complied.

15. I am now required to determine the following issues:-

(a) Whether there exists a landlord/tenant relationship herein.

(b) Whether the applicant is entitled to the reliefs sought.

(c) Who is liable to pay costs?

16. Before addressing the issues, I have looked at the reference dated 9th August 2021, which is couched in the following terms:-

“The Landlord is threatening to evict the tenant and he is harassing the tenant. I pray this Hon. Court to restrain him”.

17. The complaint filed by the applicant is therefore raising the same issues as the application and I shall therefore deal with both together.

18. In the case of Republic – vs- Chairperson, Business Premises Rent Tribunal at Nairobi & Another ex-parte Suraj Housing & Properties Limited & 2 others (2016) eKLR the court cited with approval the decision in Pritam – vs- Ratilal and Another(1972) EA 560 as follows:-

“As stated in the landlord and Tenant (Shops, Hotels and Catering Establishments) Act itself, it is an Act of Parliament to make provision with respect premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected there with and incidental thereto. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. Therefore the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply.The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal otherwise, the Tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply. Outside it, the tribunal has no jurisdiction”. (emphasis added).

19. The landlord has disputed existence of any tenancy relationship between him and the applicant herein. He has clearly stated that he has never received any rent from the applicant who is accused of being a trespasser on the suit property. On the other hand, the tenant has not filed any supplementary affidavit to conrovert depositions made in the replying affidavit and supply evidence of creation/existence of a landlord/tenant relationship.

20. In the landlord’s further affidavit sworn on 5th October 2021, reference is made to a replying affidavit of the tenant sworn on 23rd September 2021. Despite having adjourned the ruling herein on 21st December 2021 and 17th January 2022 and checking the e-filing portal for such affidavit, none was available.

21. I shall therefore proceed on the basis that no such affidavit was filed as required and proceed to determine the matter on the basis of filed documents.

22. Having considered the materials placed before me, it is quite clear that no evidence has been tendered to prove existence of a landlord/tenant relationship between the two parties herein.

23. I have looked at the applicant’s submissions dated 15th November 2021 wherein it is contended that there was enough evidence that the landlord recognizes the applicant as his tenant and that he had done introductory letters to KPLC and water service provider i.e Ewasco Co. Ltd and that the allegation that he was a trespasser was an afterthought. However, the said documents are not on record.

24. Under section 109 of the Evidence Act, Cap. 80, Laws of Kenya:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person”.

25. Section 107(1) of the same Act provides that:-

“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

26. I am not convinced that the applicant has tendered sufficient proof that he is a tenant in the suit premises. The fact that he is in occupation thereof in what the Respondent claims to be as a trespasser does not grant him a legal or equitable interest capable of protection by this honourable Tribunal.

27. In the premises, I am not satisfied that the applicant has satisfied the principles espoused in the locus classicus case of Giella – vs- Cassman Brown & co. Ltd (1973) EA 358 to qualify for the grant of an injunction.

28. Section 12(4) of cap. 301, Laws of Kenya confers this Tribunal jurisdiction to investigate any complaint relating to a controlled tenancy made to it by the landlord/tenant and make such order thereon as it deems fit. As such, the first qualification as earlier observed is that there must be in existence a landlord and tenant relationship. In absence of such a relationship the Tribunal has no jurisdiction in line with the locus classicus case of the Owners and Master of the Motor Vessel ‘Joey’ and the Owners and Masters of the Motor Tugs ‘Barbara’ & ‘Steve b’ (2007) eKLR.

29. In the premises, the final orders that commend to me are:-

(i) The application dated 6th August 2021 and the accompanying reference is dismissed with costs.

(ii) There is no landlord/tenant relationship between the Applicant and the Respondent to warrant the exercise of jurisdiction by this Tribunal.

(iii) The applicant shall pay costs of Kshs.25,000/- to the Respondent.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED THIS 21ST DAY OF JANUARY 2022 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Miss Ochieng holding brief for Ataka for the Landlord

No appearance for the Tenant