[2021] KEBPRT 40 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E053 OF 2021 (NAIROBI)

CHARLES AHENDA................................................................................TENANT/APPLICANT

VERSUS

EMMANUEL OKOTH T/A OKOHLEAH ENTERPRISES......LANDLORD/RESPONDENT

RULING

1. The Tenant’s notice of motion dated 22nd April 2021 seeks orders restraining the Landlord/Respondent from in any way interfering with the Tenant’s quiet and peaceful enjoyment of the business premises known as “Larry’s Tavern” erected on plot No. 82/4035 shop No. 5 Donholm and a further order that the Landlord be ordered to reopen the said business premises and accord the Tenant peaceful access thereto without interference pending the hearing of the complaint. The Applicant has also sought police help in execution of the orders sought together with the costs of the application.

2. The application is supported by the annexed affidavit of Charles Ahenda, the Tenant and which I summarize as follows;

a. That the parties herein entered into a lease agreement on 1st May 2017 at an agreed monthly rent of Kshs 45,000/-.

b. That the Tenant has substantially renovated the demised premises to include an upstairs seating (sic) area with a seating (sic) capacity of over four hundred (400) patrons.

c. That since March 2020, the Tenant incurred rent arrears due to the closure of bars as a result of the outbreak of covid – 19 pandemic.

d. That on 18th September 2020, the Respondent/Landlord closed the Tenant’s premises by welding the main entrance door making it impossible for the Tenant to access the business premises.

e. That the Tenant’s goods and stocks worth millions have been locked in the premises and the landlord has refused to let the Tenant access the premises.

f. That the Respondent/Landlord has advertised the premises for lease to prospective Tenants.

g. That the purported termination of the lease by the Respondent is illegal for want of the requisite notice to terminate under the provisions of Cap 301 of the Laws of Kenya.

h. That the Tenant is willing to settle the rent arrears but is currently financially strained due to the closure of his business by the Respondent and the effects of the covid 19 pandemic.

3. The application is opposed. The Landlord has sworn a replying affidavit and which I summarize as follows;

a. That he is the proprietor of the suit premises.

b. That the Respondent/Landlord entered into a lease agreement over the suit premises with the Applicant herein and one Lawi Otieno. The Tenants were carrying out a bar business.

c. That the Tenants paid up their rent up to November 2019 and thereafter completely stopped paying rent.

d. That the Landlord was informed by his Caretaker that the Tenant was carting away his goods from the suit premises using two canters. The Tenant was then in rent arrears amounting to Kshs 405,000/-.

e. That the Landlord’s Tenants confirmed that the Tenant had packed her things into the canter and left.

f. That the Applicant/Tenant had locked the premises from inside prompting the Respondent to place his own padlock on the door to prevent the Tenant from further taking away his (the Tenant’s) goods.

g. That the Respondent was informed that the Tenant came later and removed her padlock.

h. That the Respondent accessed the premises with the Applicant’s partner and found some items therein, most of which belonged to Lawi Otieno.

i. That the Respondent locked the premises to safeguard what was left behind.

j. That the Respondent advertised the premises as available for leasing as it is his source of income.

4. The affidavit sworn by Lawi Otieno (annexture E04) may be summarized as follows;

a. That the Applicant and the deponent were Tenants of the Landlord.

b. That the Applicant and the deponent were business partners but fell out in 2018 when the deponent left the Applicant to run the bar.

c. That sometimes in October 2020, the deponent and the Respondent accessed the suit premises and found that the Tenant/Applicant had moved most of the things from the bar leaving behind a few furniture.

d. That most of the furniture and the things left behind belonged to the deponent.

5. The affidavit of Eunice Akinyi Obade (deponent) annexed to the Landlord’s affidavit as E03 may be summarized as follows;

a. That she is a Tenant of the Landlord herein.

b. That on October 2020, she witnessed the Applicant herein picking furniture, TV sets, fridges, beer glasses among other essential goods from the Tenant’s premises known as Larry’s Tavern.

c. That the Applicant loaded the goods in two canters and left.

6. There is also an affidavit sworn by Christopher Katambo which I summarize as follows;

a. That he is the caretaker of the suit premises.

b. That sometimes in October 2020, he witnessed the Tenant/Applicant load two canters with furniture, TV sets, fridges, beer glasses and other assorted goods from the suit premises.

c. That he called his boss to inform him of the activities of the Tenant.

d. That his boss later came and together they realized the premises had been closed from inside, they then added their ownpadlock but which was later removed.

e. That at a later date, the deponent, the Landlord and one Lawi Otieno accessed the premises, they realized that most of the things had been carried out.

7. The Applicant has filed a further affidavit sworn on 15th October 2021 in response to the affidavit relied upon by the Landlord. I summarize the further affidavit as follows;

a. That ever since he took up the premises, the Tenant has never defaulted in paying rent.

b. That the suit premises remained closed from March 2020 to September 2020.

c. That the Tenant has never been served with any formal notice to terminate the tenancy.

d. That the amount spent in renovation is much more than what the Landlord is demanding in rent arrears.

e. That the affidavits of Eunice Akinyi obade and Christopher Katambo are false.

f. That after locking the premises, the Landlord did not call the Tenant to take an inventory.

8. The only issue that arises for consideration and determination is whether the Tenant/Applicant is entitled to the orders sought in his application.

a. The Tenant/Applicant does not deny that he is in rent arrears but only blames the covid pandemic for his failure to pay rent. The Landlord has stated, and which is not controverted that the Tenant last paid rent in November 2019. The Landlord’s act of locking the suit premises seems to have been triggered by the actions of the Applicant in carrying away his goods from the suit premises without first paying or clearing the rent arrears. I note that there is evidence by way of affidavits which point to the Tenant carting away goods in two canters.

b. The Tenant’s response to the affidavits of Eunice Akinyi Obande and Christopher Katache is a general statement that the said affidavits are full of falsehoods. The Tenant has not denied in specific particularity the clear averments in the said affidavits which state that he carried away his goods in two canters before the Landlord intervened and added his own padlock to the door of the suit premises.

c. It is trite law that there are those conditions to be met before an interlocutory injunction can be granted as exposited in Giella Vs Casman Brown Co. Ltd [1973] EA 358.

“First, an Applicant must show he has a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.”

d. On the issue as to whether the Tenant/Applicant has established a prima facie case with a likelihood of success, I do find that the Tenant having admitted to being in rent arrears, he has not established a prima facie case with a likelihood of success. Although the Tenant states that his business was affected by the effects of covid-19 pandemic, it is clear that he was in rent arrears even before the pandemic of covid 19 was declared. There is an averment by the Landlord that the Tenant has not paid rent since November 2019, that period was long before the covid – 19 pandemic was declared.

In the case of Julius Mogaka Gekonde T/A Esmort Technical College Vs Ouru Power Limited and another (Kisii HCCC No 34 of 2015, the court at paragraph 74 and 75 of its ruling stated as follows;

74 – “I find that once the Plaintiff has acknowledged that he is indeed in arrears of rent, it means that he is in breach of the most critical term of their tenancy agreement and being the defaulting party, he cannot be seen to approach the court for an order of injunction which is an equitable relief/remedy only available to parties who come to court with clean hands.

75 – I am not convinced that the Applicant/Plaintiff has established that he has a prima facie case against the Defendants with high chances of success due to his default of rent.”

e. Would the Tenant/Applicant otherwise suffer irreparable harm that cannot be compensated by way of damages if the orders sought are not granted?

The Tenant/Applicant was running the business of a bar at the suit premises. The Tenant’s losses if any, are quantifiable from his business records and can therefore be compensated by way of damages. The Tenant has not stated that the Landlord would be unable to compensate him in the event that a finding was finally made in favour of the Tenant/Applicant.

f. There is an uncontroverted averment that the last time the Tenant paid rent was in November 2019. There is also evidence by way of affidavit that the Tenant carried away most of his belongings from the suit premises before the Landlord arrested the situation. The Landlord’s rent continues to accumulate. The Tenant is not as innocent as he would like the Tribunal to believe.

g. His actions of removing goods from the demised premises points more to a Tenant fleeing from his rent obligations than an innocent Tenant going about his usual business. In the words of Justice J Ojwang’ in the case of Suleiman Vs Amboseli Resort Ltd [2004] 2EKLR;

“…the court in responding to prayer for interlocutory injunctive relief, should always opt for the lower rather than the higher risk of injustice…”

9. I am of the view that in the circumstances of this application, the greater risk of injustice would befall the Landlord if the orders sought by the Tenant are granted. I do find that the balance of convenience tilts in favour of the Landlord who has had to contend with non-payment of rent since November 2019.

10. In the final analysis, I do find that the Tenant’s application dated 22nd April 2021 has no merits and the same is dismissed with costs to the Landlord/Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman) this 20th day of December, 2021 in the presence of Wandegifor theRespondentand Owangfor theTenant/Applicant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL