[2021] KEBPRT 2 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 107 OF 2021 (NAIROBI)

DAVID MUKURIA KARANJA...............TENANT/APPLICANT

VERSUS

SAMUEL KARUME NGANGA....LANDLORD/RESPONDENT

RULING

1. The notice of motion by the Tenant herein dated 29th June 2021 seeks the following orders.

a. That the Landlord/Respondent be cited for contempt of court for disclosing and contravening an order issued by the court on 3rd February 2021.

b. That a consequence thereto, the Landlord/Respondent be committed to civil jail for a period not exceeding six (6) months.

c. That the Landlord/Respondent be ordered to compensate the Tenant for loss of business for two weeks and for all the expenses of the repairs of the toilets that the Respondent had locked (sic) and also to be further restrained from interfering with the Tenant’s/Applicant’s business premises.

d. That the OCS Kiamumbi Police Station be ordered to execute t his court’s orders.

e. Any other order.

f. Costs.

2. The application is supported by the affidavit of David Mukuria Karanja sworn on 29th June 2021 and which I summarize as follows;

a. That on 3rd February 2021, the Tribunal granted injunctive relief in favour of the Tenant against the Landlord.

b. That the orders were dully served upon the Landlord.

c. That the disobedience of the orders issued on 3rd February 2021, the Landlord has blocked the sewerage system using cement and stones effectively blocking the toilets to the business premises herein.

d. That the Tenant reported this incident to the police who established that indeed the sewerage system had been blocked with cement and polythene papers resulting in the toilets emanating a foul smell.

e. That the Landlord’s defiance of this court’s orders is a direct assault and challenge to the supremacy of law and this court should not condone such blatant acts and the Respondent ought to be punished.

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

a . That the Tenant’s application is frivolous, vexatious and bad in law.

b. That in obedience to the court orders issued on 3rd December 2021, the Respondent allowed the Tenant back into the business premises.

c. That the Respondent has never blocked the toilets to the suit premises.

d. That it is the activities of the Tenant that led to the blockage of the toilets in the suit premises.

e. That the Kiambu Public Health Officers ordered the closure of the business premises by their letter of 2nd July 2021.

f. That in light of the closure of the premises by the Public Health Authorities, there does not exist a Landlord – Tenant relationship between the parties herein.

g. That the Tenant is in rent arrears in the sum of Kshs 371,000/-.

h. That the Respondent seeks directions on the matter pending the hearing of the complaint/matter.

4. The only issue that arises for determination in this application is whether the Tenant is entitled to the orders sought in his application dated 29th June 2021. Basically, the Tenant seeks that the Landlord be punished for being in contempt of this Tribunal’s orders and further be ordered to compensate the Tenant for expenses incurred in repairing the toilet blockage allegedly perpetrated by the Landlord. The Tenant also seeks for compensation for loss of business for two weeks.

5. The Tenant’s application is primarily brought under section 5(11) of the Judicature Act. The section provides as follows;

“The High Court and Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of justice in England and such power shall extend to upholding the authority and dignity of subordinate courts.”

6. It is clear from the above provision that the power to punish for contempt of court under the Judicature Act is reserved for the High Court and the Court of Appeal. The Tribunal has no powers to punish for contempt of court under the Act.

7. Under the current dispensation, a party who wishes to proceed against another for contempt of the Tribunal’s orders ought to approach the High Court which is tasked with the duty of upholding the authority and the dignity of the subordinate court and to which the Tribunal is one.

8. The Applicant in the instant case ought to have filed the Tribunal’s orders with the subordinate court for enforcement as a decree of the court under section 14 of Cap 301. The Tribunal does not have powers to execute its orders under the provisions of Cap 301.

9. The Tenant has also prayed that the Landlord compensates him for the loss of business for two weeks and the cost of replacing the blocked toilet. The nature of the Tenant’s claim as framed is one for special damages. It is trite law that special damages ought to be specifically pleaded and proved. The Applicant has not even stated the quantum of losses incurred and the specific expenses incurred in unblocking the toilet. No figures have been given in the application and in the affidavits.

10. It is also not possible to tell who was responsible for the blockage of the sewerage system. The Tenant blames the Landlord for the blockage while the Landlord blames the Tenant for causing the blockage through the Tenant’s own activities. The averments of both parties in their respective affidavits are not helpful in resolving this issue.

11. The Tenant has also sought an order that the Landlord be further restrained from interfering with the Tenant’s business premises. I have no difficulty in granting this prayer in view of the orders I granted in my ruling delivered on 21st July 2021 and the reasoning therein.

12. The Landlord has stated that the Tenant’s business premises was ordered closed by the Public Health Department by their letter of 2nd July 2021 and therefore there exists no Landlord/Tenant relationship between the parties. The Landlord has sought for the Tribunal’s direction in view of this “alleged” termination of the tenancy relationship by the letter from the Kiambu Public Health Department.

13. My view is that the letter from the Kiambu Public Health Department does not affect the controlled tenancy between the parties herein. The letter only seeks to enforce Public Health concerns and is conditioned upon the satisfaction of the conditions set out herein. It is a matter between the Tenant and the Public Health Department and so long as the Tenant meets the conditions set out therein, the Public Health Department has no further interest in the activities of the Tenant. The Landlord has not stated in his pleadings that the Tenant has not met those conditions and neither has the Public Health Department stated so.

14. In conclusion, the only order suitable in the circumstances is an order restraining the Landlord from interfering with the Tenant’s business premises pending the hearing and determination of this complaint. On the Landlord’s claim that rent is in arrears to the tune of Kshs 371,000/-. I hold that the Landlord is entitled to his rent and is free to levy distress for the undisputed rent arrears. There shall be no orders as to costs.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 10TH DAY OF DECEMBER, 2021 IN THE PRESENCE OF MUKAMA HOLDING BRIEF FOR NGUGI FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL