[2022] KEBPRT 876 (KLR)

Caroline Kipruto t/a Sajjy Socy Agencies v Edward Gayi t/a Joventers Energy (Tribunal Case E864 of 2022) [2022] KEBPRT 876 (KLR) (Civ) (13 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 876 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E864 of 2022

Gakuhi Chege, Vice Chair

December 13, 2022

Between

Caroline Kipruto t/a Sajjy Socy Agencies

Tenant

and

Edward Gayi t/a Joventers Energy

Landlord

Ruling

1. Through a complaint dated September 28, 2022, the tenant moved this tribunal under section 12(4) of cap301, laws of Kenya complaining that the landlord wanted to evict her out of her business premises without justifiable reasons despite the fact that her rent was fully paid.

2. She simultaneously filed a motion of even date seeking for restraining orders against the landlord from interfering with her quiet occupation and lawful enjoyment of the suit premises located at llbissil- Kajiado. She complained that the landlord issued a verbal notice to her to vacate the suit premises on or before September 30, 2022 or be evicted forcefully therefrom.

3. The tenant deposes in her supporting affidavit that she pays a monthly rent of Kshs 80,000/- for the last 4 years. The tenant accuses the landlord of seeking to evict her from the business premises in order to operate the same business although she had no rent arrears.

4. The tenant contends that she depends on the suit premises to cater for her basic needs and therefore seeks protection from this tribunal.

5. Interim orders of injunction were given pending hearing inter partes on October 24, 2022. On the said date, counsel for the landlord submitted that the tenant had not been paying rent and was underserving of the orders issued in her favour. She had not paid rent for 9 months excluding September 2022 and her lease expired on September 30, 2022.

6. The tenant however responded that her lease was expiring in October 2023 and she requested for time to file evidence of payment of rent saying that it was up to date. She was thus given 7 days to file and serve a further affidavit and submissions.

7. On October 3, 2022, the landlord had moved this tribunal seeking in material part for stay of execution and setting aside of the orders given on September 29, 2022 in favour of the tenant on grounds inter-alia that her lease lapsed on September 30, 2022.

8. The tenant is accused of habitually defaulting in payment of rent and on many occasions making late payments. As a result, the landlord issued a notice dated September 26, 2022 notifying her to surrender the leased premises.

9. The tenant is further accused of failing to make material disclosure of facts that her lease agreement had come to an end thereby misleading the tribunal to believe that the lease agreement was for a period of 4 years. The lease is attached to the supporting affidavit as annexure ‘EG2’ and according to the landlord it had no clause for extension.

10. The tenant is said to have defaulted to pay rent for a period of 8 months having only paid Kshs 120,000/- since January 2022 thereby accruing arrears of Kshs 600,000/- as evidenced by invoices marked ‘EG3’. The notice of lapse of the lease is exhibited as ‘EG4’. As such, the order of September 29, 2022 was obtained through non-disclosure of material facts. The tenant also failed to attach the lease agreement to her application.

11. It is therefore the landlord’s contention that the tenant has brought the application with unclean hands by failing to avail documentation to show that she was paying her rent dutifully.

12. The tenant filed a further affidavit sworn on October 26, 2022 wherein she responds to the landlord’s application dated October 3, 2022. It is deposed that the lease was renewed on October 1, 2020 for a period of 3 years expiring on 31st September 2023 “(sic) marked ‘CK2’.

13. The tenant deposes that the landlord continued to receive monthly rent and that the notice of eviction was an afterthought. She claims to have cleared rent by the time of filing suit. She contends that the landlord has never issued any demand notice for late payment or non-payment of rent.

14. I am now required to determine the following issues in this case:-a.Whether the tenant is entitled to the reliefs claimed in the complaint and application dated September 28, 2022. b.Whether the landlord is entitled to the reliefs sought in the application dated October 3, 2022. c.Who is liable to pay costs?.

15. The tenant moved this tribunal complaining that the landlord had issued her with a verbal notice and threatened to evict her from the suit premises without justifiable reasons. She therefore filed a motion seeking for restraining orders against the landlord from interfering with her quiet occupation and lawful enjoyment of the suit premises.

16. The principles upon which such applications are considered were long settled in the locus classicus case of Giella v Cassman Brown & Co Ltd(1973) EA 358 as follows:-i.An applicant must show a prima facie with a probability of success.ii.An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.iii.When the court is in doubt, it will decide the application on the balance of convenience.

17. Section 12(4) of cap 301, laws of Kenya, gives this tribunal power to investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and may make such order thereon as it deems fit.

18. In this case, the tenant’s lease is alleged to have expired on September 30, 2022. The lease is annexed to the replying affidavit as annexure ‘EG2’. It reads that the lease is for a period of 2 years (24 months) from October 1, 2020 and ending on September 30, 2023. It has other writings indicating “2022 not 2023 for two years”.

19. The tenant’s copy of the same document annexed to the further affidavit shows that the lease is for a period between October 1, 2020 and September 30, 2023. It does not indicate the number of years of the lease.

20. The documents annexed to the affidavits of both parties as the lease agreement for the period starting October 1, 2020 appear to be altered to suit each party’s position and is therefore inadmissible for purposes of deciding the dispute before the tribunal. The date it ends is however clearly September 30, 2023 in both documents and I therefore find and hold that it is still subsisting notwithstanding the confusion in the number of years of lease notwithstanding.

21. In absence of a notice to terminate the tenancy under section 4(2) of cap 301, laws of Kenya, the landlord is not entitled to evict the tenant as her tenancy is controlled.

22. As regards payment of rent, I agree with the landlord that the tenant despite claiming that she had cleared her rent by the time of coming to this tribunal has not presented any iota of evidence to prove the same. The manner of payment is not disclosed despite the landlord maintaining that she had not paid rent for 8 months as at October 3, 2022 when the landlord’s application was filed.

23. Section 107(1) of the Evidence Act cap 80, laws of Kenya provides as follows:-“Whoever desire 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”

24. Section 108 of the same Actprovides as follows:-“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”.

25. In absence of any evidence of payment of the rent alleged to be in arrears, I am persuaded that the tenant owed the sum of Kshs 600,000/- claimed by the landlord as at October 3, 2022 and was therefore not entitled to the orders of injunction given in her favour in this case in line with the decision in the case of Samuel Kipkori Ngeno & another v Local Authorities Pension Trust (Registered Trustees) & another [2013] eKLR at paragraphs 9 & 12 where it was held as follows:-“9. A tenant’s first and main obligation is to pay rent as and when it becomes due for the landlord has the right to an income from his investment…………”.“12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is underserving of the court’s discretion. The court cannot be a refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due”.

26. In the premises, the landlord’s application for setting aside or varying the orders given herein in favour of the tenant is merited and for allowing.

27. As regards costs, the same are in the tribunal’s discretion under section 12 (1) (k) of cap 301, laws of Kenya but always follow the event unless for good reasons otherwise ordered. As the tenant’s application has failed and the landlord’s application succeeded, I shall exercise my discretion to award costs to the latter.

28. In conclusion therefore, the following final orders commend to me in this matter-:a.The tenant’s application dated September 28, 2022 and the complaint of even date is dismissed with costs.b.The landlord’s application dated October 3, 2022 is allowed in terms of prayer 3 thereof and the interim orders given on September 29, 2022 are hereby set aside.c.The tenant is liable to pay rent arrears of Kshs 600,000/- as at October 3, 2022 and any other subsequent months’ rent to the landlord and in default, the landlord is entitled to use lawful means to recover the same.d.The landlord is awarded costs of Kshs 30,000/- against the tenant all inclusive.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 13TH DAY OF DECEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Nyanjui holding brief for Kipruto for the landlordLater the tenant appears and the final orders are read to her.