[2021] KEBPRT 442 (KLR)
The Tribunal found that the Landlord obtained an ex-parte order authorizing eviction and attachment of goods without disclosing the existence of a prior restraining order, amounting to abuse of court process. The Tenant, although admitting some arrears, had not been served with a valid notice to terminate tenancy,...
Source-derived case information.
- Citation
- [2021] KEBPRT 442 (KLR)
- Parties
- Applicant: Christine Nkriote Kimbui; Respondent: Izudom Ali
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 555 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Applications
- Outcome
- Tenant's application allowed; Landlord's application dismissed; costs to Tenant.
- Legal Topics
- Landlord Tenant Disputes, Injunctive Relief, Rent Arrears, Eviction Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Nkriote Kimbui
Applicant
Izudom Ali
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the Tenant is entitled to injunctive relief restraining the Landlord from eviction, attachment, or interference with the business premises.
- 2 Whether the Landlord is entitled to orders for payment of rent arrears and attachment of the Tenant's goods.
- 3 Whether the Landlord's ex-parte order was obtained in abuse of court process.
Ratio Decidendi
The Tribunal found that the Landlord obtained an ex-parte order authorizing eviction and attachment of goods without disclosing the existence of a prior restraining order, amounting to abuse of court process. The Tenant, although admitting some arrears, had not been served with a valid notice to terminate tenancy, and thus the Landlord was not entitled to vacant possession or eviction. The Tribunal held that the Tenant was justified in seeking protection from the Tribunal and granted the injunctive relief sought, while dismissing the Landlord's application for payment and attachment. Costs were awarded to the Tenant.
Court Disposition
Tenant's application allowed; Landlord's application dismissed; costs to Tenant.
Orders
- Tenant's application dated 2nd June 2020 allowed in terms of prayers 2 and 3.
- Landlord's application dated 16th June 2020 dismissed.
Full Case Text
Judgment text and source record
55 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 555 OF 2020 (NAIROBI)
CHRISTINE NKIROTE KIMBUI…...............APPLICANT/TENANT
VERSUS
IZUDOM ALI......................................... RESPONDENT/LANDLORD
RULING
On 14th July 2020, this matter was ordered to be consolidated with BPRT NO. 574 of 2020. The matter proceeded to hearing in respect of the applications dated 2nd June 2020 on 16th June 2020 in BPRT NO. 555/2020 and 8th June 2020 in BPRT NO. 574 of 2020.
In the application dated 2nd June 2020, the Tenant sought for restraining order against the Landlord to restrain eviction, attachment, closing or interference with the business premises known as “SYOKIMAU TWINS”.
The Tenant feared forcible eviction by the Landlord from the demised premises.
The application is supported by the affidavit of the Tenant sworn on 2nd June 2020 in which she contended that she was issued with an illegal notice of forcible eviction.
The notice is dated 18th May 2020. It gave the Tenant up to 22nd May 2020 to pay rent in full or move out of the demised premises by the said date.
In the application dated 16th June 2020, the Landlord sought for stay of the orders dated 5th June 2020.
He also sought that the application dated 2nd June 2020 be struck off and the Applicant/Tenant ordered to pay rent arrears of Kshs.330,000/- forthwith and in default the Landlord be allowed to attach the Tenant’s goods to recover the same.
The application is supported by the Landlord’s affidavit sworn on even date.
According to the Landlord, the Tenant obtained the orders of 5/6/2020 fraudulently and without disclosing material facts that she owed rent arrears of Kshs.330,000/- which continued to accumulate.
The Landlord contends that the Tenant disappeared from the premises after defaulting to pay rent for more than six months.
In her replying affidavit sworn on 8th July 2020, the Tenant opposes the Landlord’s application dated 8th June 2020.
The Tenant deposes she served the order given on 5th June 2020 through a court process server.
It is the Tenant’s case that on 17th June 2020, she was called by the O.C.S. MLOLONGO POLICE STATION who requested her to avail herself at the shop where she found the same being broken into despite there being an order against the Landlord.
She was shown an order dated 11th June 2020 in BPRT NO. 574/2020 (NAIROBI) authorizing the Landlord to break into the business premises and remove all the Respondent’s/Tenant’s goods and keep them in safe custody for 30 days and subsequently attach the same to recover rent arrears.
The order also directed the Tenant to vacate and give vacant possession and allow the Landlord to re-rent the premises to any other willing tenant.
The order had no date for inter-partes hearing and as such had effectively disposed of the matter ex-parte.
This created a scenario where there were two conflicting orders issued by the same Tribunal.
The O.C.S. directed that both parties await further orders on 2nd July 2020 and ordered the Landlord to return the keys of the premises to the Tenant.
The application dated 8th June 2020 was never served upon the Tenant.
When the matter came up for hearing on 14th July 2020, the Tenant stated that she owed only three (3) months rent and had no intention of running away.
She argued that the Landlord responded to her application despite alleging that he was never served with the order.
The Tenant attributed the arrears of rent to Covid-19 pandemic effects but was n constant communication with the Landlord.
The Tenant stated that there was a dispute on the amount owing and required the issue to go to full hearing.
The Tenant said that she was willing to sit down with the Landlord and agree on how to pay the rent due once the premises were reopened.
She stated that there was a payment of Kshs.100,000/- to one HARUNI who was her initial Landlord. This payment was being contested by the Landlord/Respondent.
The Tenant requested for reopening of the business premises.
In response, counsel for the Landlord submitted that there was an affidavit sworn by his client on 13th July 2020.
According to the Landlord, he issued the Tenant with notice of the rent due and intention to re-enter the premises. The Tenant had consistently failed to pay rent and had come to court with unclean hands.
The Tenant had not paid rent since July 2019. It was submitted that there was no illegality in the notice issued to the Tenant.
According to the Landlord, he came to know of the orders of injunction issued in this case after 11th June 2020 while at the Chief’s office.
It was urged to direct the Tenant to pay what is conceded as owing and the amount in dispute to await determination of the suit.
I have listened to both parties and the only issue for determination is which between the two applications dated 2nd June 2020 and 16th June 2020 ought to succeed.
The application dated 8th June 2020 is already spent and there is nothing much that can turn on it suffice however to say that the said application and order made pursuant thereto was made with the sole intention of circumventing the order made in this case on 5th June 2020.
The Landlord despite being aware of the said order did not disclosure its existence to the court and thereby got a final order through an ex-parte process.
It is my considered view that the said order was obtained in outright abuse of court process.
Although the Tenant admits owing 3 or 4 months arrears, it is noted that no notice to terminate her tenancy was served by the Landlord to warrant an order for vacant possession.
In the premises, the Tenant was legally justified to seek protection from the Tribunal from the acts of the Landlord in trying to evict her in the guise of recovery of rent arrears.
I therefore allow the Tenant’s application dated 2nd June 2020 in terms of prayers 2 and 3. I proceed to dismiss the Landlord’s application dated 16th June 2020.
The Tenant shall have costs of both applications.
It is so ordered.
RULING READ, SIGNED AND DELIVERED ON 18TH JUNE 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Tenant/Applicant in person present
No appearance for the Landlord