[2021] KEBPRT 49 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E345 OF 2021 (NAIROBI)

CHRISTINE AKINYI WAMBOGO T/A

BHAKITA HOSTEL...............................APPLICANT/TENANT

VERSUS

JUNE KATHINI MUTHOKA.....RESPONDENT/LANDLORD

RULING

1. This is an application dated 26/7/2021 in which the tenant seeks for orders of temporary injunction against the landlord from evicting, distressing, termination of tenancy or other interference with quiet and peaceful enjoyment of the suit premises.

2. The application is supported by her affidavit of even date wherein she deposes that she entered into a tenancy agreement on 1st July 2018 in respect of the suit premises at a monthly rent of Kshs.55,000/-.

3. The tenant deposes that the landlord had threatened her with eviction from the suit premises without notice despite paying rent and before expiry of the tenancy agreement.

4. The reference dated 27th July 2021 by the tenant raises the same complaint as the application and both shall be determined together.

5. The application is opposed through a replying affidavit sworn by the Respondent on 23rd August 2021. According to the landlord she entered into a tenancy agreement with the tenant dated 1/7/2018 for a period of two (2) years for purposes of operating a hostel. However the tenant did not sign the agreement.

6. The agreed rent was Kshs.55,000/- per month payable through the landlord’s account with National Bank of Kenya, Kenyatta Avenue. The payments have been irregular and against the initial agreement. As at July 2021, the tenant was in arrears of Kshs.612,500/- based on annexture ‘JKM2’.

7. It is the landlord’s case that the tenant backtracked on an agreement to pay an additional Kshs.20,000/- every month to cater for arrears in terms of annexture ‘JKM4’.

8. The landlord states that the tenancy agreement having been for two years lapsed in July 2020. It further provided under clause 10 for resolution of disputes through arbitration in the first instance.

9. The landlord deposes that the tenant approached the Tribunal with unclean hands and misrepresented facts in regard to rent arrears and harassment by the landlord.

10. In a further affidavit sworn on 2nd September 2021, the tenant deposes that she was given only one copy which she executed. The same is marked ‘CAW-‘. She states that the landlord accepted rent through the bank and Mpesa whose evidence she had in her possession but have not been exhibited.

11. She only admits arrears for April and May 2020 which she attributes to Covid-19 pandemic. The tabulation marked “CAW-1” has no deposit slip nor mpesa statements attached.

12. On the contention that the tenancy had lapsed, the tenant contends that the landlord continued to receive rent after July 2020.

13. The matter was ordered to proceed by way of written submissions and both parties complied.

14. The issues for determination based on the pleadings are:-

a. Whether there is in subsistence a controlled tenancy between the parties herein.

b. If the answer to (a) above is in the affirmative, whether the tenant is entitled to the reliefs sought.

c. Who is liable to pay costs?

15. It is not in dispute that the tenancy agreement dated 1st July 2018 is not executed by both parties and witnessed as required under section 3(3) of the Law of contract Act, Cap 23 Laws of Kenya. That means that it cannot be used to advance the contention that the tenancy lapsed in July 2020.

16. By dint of Section 2(1) of Cap. 301, the tenancy being not for more than 5 years and in writing is a controlled one which can only be terminated in the manner provided under the Act.

17. Secondly, while considering an application for temporary injunction, I am required to be guided by the principles espoused in the case of Giella – vs- Cassman Brown Co. Ltd (1973) EA 358 to wit:-

i. “An applicant must show a prima facie case 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”.

18. A prima facie case was defined in the case of Mrao Ltd – vs- First American Bank of Kenya Ltd & 2 Others(2003) eKLR at page 8/10 by Bosire J.A (as he then was) to mean:-

“So what is a “prima facie case”. I would say that in civil cases, it is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”.

19. Guided by the foregoing decisions, I am required to determine whether the tenant has brought herself within the principles of granting an injunction based on the materials presented before me.

20. Although the tenant claims that she was threatened with eviction by the landlord, no evidence has been presented before me as required under section 107 of the Evidence Act, Cap. 80 Laws of Kenya.

21. Indeed, the tenant has not presented evidence of any notice of eviction or termination of tenancy. Although the landlord admits pressing for payment of rent arrears amounting to Kshs.612, 500 as at the date of swearing her replying affidavit, no evidence of illegal recovery thereof has been presented.

22. By her email contained in annexture ‘JKM2’, the tenant admitted owing rent arrears and it must have been intended to forestall any recovery measures of such arrears when she instituted the instant proceedings.

23. It is trite law that, he who comes to equity must come with clean hands and a tenant who has failed to meet his/her cardinal obligation to pay rent is disentitled to equitable relief of an injunction (see Samuel Kipkori Ngeno & Another – vs- Local authorities Pension Trust (Registered Trustees) and Another (2013) eKLR at paragraphs 8 and 12.

24. In the premises, I find and hold that the tenant is underserving of exercise of my discretion in this matter in her favour.

25. The upshot of my foregoing analysis is that:-

i. The application dated 26/7/2021 and the Reference of even date is hereby dismissed with costs.

ii. The interim orders given on 28th July 2021 is hereby discharged and vacated.

iii. The landlord is at liberty to use lawful means to recover any rent in arrears.

iv. The landlord’s costs herein are assessed at Kshs.30,000/-.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 9TH DAY OF DECEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Okanga for Respondent/Landlord

No appearance for the Tenant