[2022] KEBPRT 81 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 50 OF 2021 (NAKURU)

BETTY WAIRIMU MBUGUA.......................................................APPLICANT/TENANT

VERSUS

S.K. TIMS BUSINESS CENTRE..........................................RESPONDENT/LANDLORD

RULING

1. By a motion dated 31st March 2021, the tenant moved this Tribunal seeking for restraining orders against the Landlord from harassing, evicting and/or locking her business premises or in any way interfering with her peaceful occupation of her tenancy in premises known as Kiambogo/Kiambogo/Block 2/4337 where she operates a mini supermarket.

2. She further seeks leave to deposit rent through the Tribunal and that the OCS, Mwariki Police Station to ensure compliance with orders of the Tribunal.

3. The application is supported by the tenant’s affidavit of even date and the grounds on the face of the application.

4. On 27th November 2020, the tenant took possession of the suit premises where she started the business of a Mini-Supermarket after paying rent deposit in September 2020 before the house was completed.

5. It is deposed that on 18th January 2021, the tenant signed a tenancy agreement a copy of which is annexed as ‘BWM-1’. By the date of filing the application, she had no rent arrears.

6. On 19th March 2021, the landlord refused to accept rent from the tenant and reversed the transaction made via Mpesa as per annexture ‘BWM3’. The landlord demanded that the tenant vacates his premises on 5th April 2021 without giving the proper notice required by law.

7. The landlord wrote an SMS text message to the tenant not to deposit any other cash in form of rent and arrange to shift from his shop as quickly as possible. The message is exhibited as annexture ‘BWM4’.

8. The landlord filed a replying affidavit sworn by one Stephen Wambugu on 21st April 2021 in opposition to the application.

9. It is deposed therein that the tenant was issued with a notice to vacate the premises for renovation so as to make it habitable. The notice is attached as annexture ‘SW1’. The tenant is said to have failed to comply with the said notice.

10. The said notice is for one (1) month in terms of Clause 4 of the tenancy agreement. The landlord deposes that he has allowed the tenant time to vacate but she has failed to do so.

11. It is the landlord’s case that the tenant was in arrears of rent for March and April 2021 and had failed to pay the balance of his deposit leading to Kshs.30,000/- being in arrears.

12. The landlord deposes that upon commencement of the tenancy, he realised that the premises was not fit for habitation and there was need to renovate it. As such, it was in the best interest that the premises be renovated.

13. In what is headed to be a “reply to defence”, the tenant denies service of notice to vacate the premises – she contends that she never refused to pay alleged rent arrears starting that it is the landlord who refused to receive rent.

14. According to the tenant, the premises are newly constructed and the landlord was just bringing the issue of the premises not being fit for habitation so that he can evict her and lease the same to another tenant.

15. The tenant also filed what is headed “replying affidavit” reiterating the contents of the “reply to defence”. She states that there is no affidavit of service to prove that she was served with notice to vacate the suit premises. She reiterates that she paid rent deposit as required. According to the tenant, it had been agreed with the landlord that she pays half rent for December in the sum of Kshs.6,000/- and 18,000/- and had not fallen into arrears until the landlord refused to receive rent.

16. The tenant has explained in paragraph 9 of the said affidavit the rent payments and dealings between her and the landlord in relation to the suit premises. I need not reproduce the details thereof in this ruling.

17. She has attached Mpesa statement as well as text messages from the defendant as annextures ‘BMW1, and 2’ respectively.

18. On the other hand, the landlord filed a motion dated 21st April 2021 seeking in pertinent part for review and setting aside of the orders issued on 8th April 2021 on the basis that the tenant failed to disclose that she was issued with a one (1) month notice to vacate the suit premises for renovation purposes.

19. It is also pleaded that the tenant failed to pay rent for the month of March and April 2021 and failed to pay balance of her deposit totaling to Kshs.30,000/-.

20. The application is supported by the affidavit of the landlord sworn on 21st April 2021 wherein it is deposed that the tenant having been served with a one month notice failed to comply and moved to this Tribunal. The other issues raised are already captured in his replying affidavit of 21st April 2021 which I have already discussed in this ruling.

21. The said application is opposed through the tenant’s replying affidavit sworn on 10th June 2021 whose contents, I have already captured in this ruling.

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

(a) Whether the tenant/applicant is entitled to the reliefs sought in the application dated 31/3/2021.

(b) Whether the landlord is entitled to the reliefs sought in the application dated 21/4/2021.

(c) Who is liable to pay costs?

23. The tenant brought the instant application after the landlord refused to accept rent for the month of March 2021 and wrote an sms message in the following terms:-

“do not deposit other cash amount about rent arrange yourself to shift from my shop please as quick as possible”.

24. The tenant deposes that she has never been served with notice to terminate tenancy which explains why there is no affidavit of service on record.

25. On the other hand, the landlord states that the tenant failed to pay rent for the month of March and April 2021 as well as rent deposit balance in terms of the tenancy agreement.

26. A cursory look at the materials placed before me reveals that the landlord refused to accept rent from the tenant. This fact has not been denied by the landlord in his replying affidavit. There is evidence of refund of money sent to the landlord by the tenant. One wonders how the tenant in such circumstances would be accused of non-payment of rent.

27. I therefore find that there was no failure to disclose any relevant fact on the part of the tenant. The rent arrears complained of by the landlord were occasioned by his refusal to accept payment as deposed by the tenant. This means that the tenant has placed before me a prima facie case with a probability of success.

28. As such, the authorities cited by the landlord’s counsel are not relevant to the facts of this case.

29. In regard to the second principle of irreparable injury, it is quite clear that with the refusal of rent, the landlord demanded that the tenant vacates the suit premises. The tenant states that she was never served with any notice as envisaged in section 4(2) of Cap. 301, Laws of Kenya to terminate tenancy. The risk of eviction was therefore real and the tenant moved to the tribunal in fear thereof.

30. The nature of injunction sought by the tenant, is what in law is referred to as a ‘quia timet’ injunction which was considered in the case of Kwality Candies and Sweet Ltd – vs- Industrial Development Bank Ltd (2005) eKLR at page 6-7/11 as follows:-

“A quia timet action is not based upon hypothetical facts for the decision of an abstract question. When the court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the court, it will act at once and protect the rights of the party who is in fear and thus supply the need of what has been termed protective justice. It is a very old principle”.

31. In view of the foregoing, the very threat of an injustice is sufficient to justify issuance of an injunction against the Respondent.

32. In regard to the second application by the landlord, I am not convinced that there was failure to disclose on the part of the tenant. There is indeed evidence that it is the landlord who refused to accept rent. He cannot turn around to accuse the tenant of non-payment of rent.

33. It is trite law that “equity will not allow the plaintiff to gain from his wrongful act nor will a court aid a man to derive advantage from his wrong for such would be unconscionable” (see the case of Mary Wanjiku & Challa Holdings Ltd – vs- Kenya Commercial Bank Ltd (Mombasa HCCC No. 250 of 2000).

34. Consequently, the orders that commend to me are as follows:-

(i) The tenant’s application dated 31st March 2021 is allowed in terms of prayers 2 and 4 thereof.

(ii) The landlord’s application dated 21st April 2021 is hereby dismissed.

(iii) The reference shall be set down for hearing upon compliance by both parties with order 11 of the Civil Procedure Rules by filing witnesses statements and documents within the next forty five (45) days hereof.

(iv) Costs of the two applications are awarded to the tenant.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 26TH DAY OF JANUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Applicant/Tenant present in person

No appearance for the Landlord.