[2021] KEBPRT 385 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E038 OF 2021 (NAIROBI)

CATHERINE NYAMBURA KAMAU..........................TENANT/APPLICANT

VERSUS

ALICE WANJIKU..........................................1ST RESPONDENT/LANDLORD

WESTWAYS AGENCIES......................................2ND RESPONDENT/AGENT

TRADE WIDE AUCTIONEERS...........3RD RESPONDENT/AUCTIONEERS

RULING

1. Before me is an application dated 21st April 2021 in which the Tenant is seeking in material part for orders that Trade Wide auctioneers be ordered to release the Tenant’s tools of trade immediately and unconditionally pending hearing and determination of the case.

2. The Tenant further seeks that the Respondents be ordered to compensate for loss and damage incurred by her pending hearing and determination of the case.

3. She finally seeks for restraining orders against the Landlord from in any manner interfering with her quiet occupation and lawful enjoyment of the suit premises at Kahawa West until the hearing and determination of the case.

4. The application is supported by the Tenant’s affidavit of even date, wherein she deposes that she is the 1st Respondent’s tenant paying monthly rent of Kshs.7000/-.

5. She admits that as at March 2021, she was in rent arrears of Kshs.9,000/- and wants suspension of payment of rent for the period when her business was locked.

6. On 9th April 2021, the Respondents proclaimed and attached the Tenant’s goods which included her tools of trade rendering it impossible to operate the business.

7. It is the Tenant’s contention that the value of the tools of trade is more than her admitted rent arrears of Kshs.12,500/- which she desire to pay in instalments.

8. The Tenant deposes that she has done repairs, renovations and improvements at an estimated cost of Kshs.38,000/-.

9. On 19th April 2021, the Tenant’s premises were locked by the 2nd Respondent by sealing the door thereof.

10. She blames her woes to Covid-19 pandemic and fears that she might be evicted therefrom.

11. According to the Tenant, closure of her business premises and the attachment has caused her emotional, psychological suffering and demeaned her reputation by being depicted as a truant tenant.

12. She contends that she stands to suffer in the hands of the Respondents who have interfered with her quiet occupation and threatened her with eviction.

13. In response to the application, one Samson Kayai who is a director of the 2nd Respondent swore a replying affidavit on 19th May 2021 to oppose the application.

14. He deposes that the Applicant has been fully complying with the terms of the tenancy agreement and has in hefty rent arrears of Kshs.58,500/- which she had failed to pay despite requests and demands to do so.

15. The said arrears was for a period of 8 months and that the Landlord accorded with the law in levying distress for rent.

16. The attached goods were allegedly sold on 21st April 2021 after the Tenant refused to settle the arrears and that the current application was filed after the event.

17. The applicant failed to comply with the orders issued herein by paying rent as ordered and the application ought to be demised with costs.

18. On unknown date, the Tenant swore a further affidavit in which she insists owing only Kshs.9000/-.

19. She has annexed an Mpesa statement showing a payment of Kshs.5,000/- out of Kshs.9,000/- on 9/4/2021, Kshs.2000/- on 28/3/2021, Kshs.2,700/- on 22/3/2021, Kshs.10,000/- on 20/6/2020, Kshs.5,000/- on 2/9/2020, Kshs.1000/- on 23/10/2020, and a sum of Kshs.35,000/- on 22/3/2021 which was receipted by the agent.

20. The said payments have not been disputed and clearly shows the tenant’s willingness to settle the arrears of rent due to the Landlord.

21. Having gone through the pleadings and submissions filed by the 2nd Respondent, I find that the only issue for determination is whether or not the orders sought ought to be granted in favour of the Tenant.

22. When the Tenant filed her application before the Tribunal, she was candid enough to say that she was indebted to the Landlord in the sum of Kshs.9,000/-.

23. The Landlord and her Co-Respondent have not attached any statement of account to show how the sum of Kshs.58,500/- is made up.

24. Equally, although the 2nd Respondent deposes that the Tenant’s attached goods were sold, there is no evidence of any advertisement or sale and if so how much was realized after the said sale in line with the Auctioneers Act.

25. In the premises and in line with the celebrated case of Giella -vs. Cassman Brown & Co. Ltd (1973) EA 358, I find and hold that the Tenant has demonstrated that she has a prima facie case with a probability of success.

26. As to whether the Applicant has proved that she will suffer loss and damage in the event of sale of her properties, I note that the attached items are indeed tools of trade for her salon trade which are exempt under section 18(1) (d) of the Distress for Rent Act, Cap 293, Laws of Kenya.

27. The said attachment was therefore intended to paralyse the Tenant’s business and make it impossible for her to continue operating therein thereby constructively evicting her therefrom.

28. The 2nd Respondent in its replying affidavit did not deny closure of the business premises on 19th April 2021 which act was again illegal and uncalled for.

29. I am therefore convinced that if this Tribunal fails to grant the orders sought, it shall have abdicated its duty to protect Tenant’s from illegal evictions.

30. I therefore hold that the second principle for granting orders of injunction have been met.

31. In any case, the balance of convenience tilts heavily towards preserving the status quo in the pendency of hearing and determination of the suit.

32. In the premises, I make the following orders:-

i. That the 3rd Respondent, Trade wide auctioneers is hereby ordered to release the Tenant’s tools of trade immediately and unconditionally pending hearing and determination of the case.

ii. That the Landlord, her servants, employees, agents and/or any other person claiming through her is hereby restrained from unlawfully harassing, intimidating and/or closing, evicting, threatening, disconnecting electricity power and water supply to the Tenant’s business premises or in any other manner interfering with her quiet occupation and lawful enjoyment of the suit premises at Kahawa West pending the hearing and determination of the case.

iii. That the O.C.S Kahawa Police station shall assist in enforcing compliance with these orders.

iv. That the Tenant shall continue paying rent from April 2021 to date at the agreed rate of Kshs.7,000/- per month without fail.

v. That the rent due in respect of the period prior to April 2021 be reconciled by both parties failing which both parties shall file and exchange their statements of rent account within the next 30 days for determination by this Tribunal.

vi. That the Tenant shall have the costs of this application.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 6TH DAY OF AUGUST 2021

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Mr. Otieno for 1st Respondent

Applicant/Tenant present in person