[2021] KEBPRT 46 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E249 OF 2021 (NAIROBI)

DAVID OMWANSA ORANGO.................APPLICANT/TENANT

VERSUS

JAMES KAGONIA.............................RESPONDENT/LANDLORD

RULING

1. The tenant filed a motion dated 25th June 2021 seeking various reliefs some of which were granted ex-parte. The main prayer is that the landlord be restrained from further closing the business premises of the tenant without reference or authority of the Tribunal.

2. The application is supported by the affidavit of the tenant of even date and the grounds on the face of the application.

3. The parties herein entered into a tenancy agreement in January 2021 at a monthly rent of Kshs.15,000/-. A sum of Kshs.65,000/- was paid being 4 months rent. In March, the tenant paid a total sum of Kshs.15,000/-.

4. On 19th June 2021, the tenant found the premises closed and could not gain access thereto. Efforts to establish the cause of closure from the landlord were futile.

5. This prompted the tenant to move this Tribunal for reopening orders which were granted ex-parte. It is the tenant’s case that he had no rent in arrears by the time of the said closure.

6. The application is opposed through a replying affidavit of the Respondent sworn on 27th August 2021 wherein he states that there was no agreement entered into with the tenant.

7. He states that the sum of Kshs.65,000/- was three months rent deposit (Kshs.45,000/-), one month rent (Kshs.15,000/-) and Kshs.5000/- as water deposit.

8. On 20th March 2021, the tenant made a payment of Kshs.10,000/- and on 6th June 2021 requested for the rent deposit to be applied towards rent for April, May and June after expressing inability to continue with business.

9. The tenant is said to have locked the premises and went away with the keys as discussed on 6th June 2021. The landlord deposes at paragraph 7 that the premises may have been closed by the tenant’s business partner one Elizabeth.

10. According to the landlord, the tenant visited the premises on 2nd August 2021 in the company of police officers where it turned out that the latter had the keys to the premises and opened the same. He confirmed that his property was okay in the presence of police officers.

11. The landlord therefore prays for payment of expected rent from June 2021 until the matter is determined.

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

13. I am required to determine whether to grant the reliefs sought by the tenant and secondly determine who is liable to pay costs of the application and reference as both raise the same issues.

14. The orders sought by the tenant are in the nature of an injunction. The principles upon which an injunction can be granted were long settled by the Locus Classicus Case of Giella – vs- Cassman Brown and Co. Ltd (1973) EA 358 as follows:-

(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.

15. The chief complaint by the tenant is that the landlord closed his business premises without any notice or tribunal order. On the other hand, the landlord claims that it is the tenant who had closed the premises.

16. It is therefore not in doubt that the business premises was closed at the time the tenant came to court. The landlord submits that the applicant indicated that he had employees who were the custodians of the keys to the premises and as such it was impossible to tell who closed the business.

17. He denies having been summoned by the chief over the closure and insists that the premises might have been a victim of the sour relationship between the tenant and one Elizabeth.

18. I have analysed the depositions made by both parties and I find the landlord to be erratic and untruthful. I do not see what benefit a tenant would gain by closing his own business and then rush to court to obtain an order for reopening. It is not in tandem with normal human behavior.

19. There having been no court order to support such closure, I find and hold that it was illegal for the landlord to do so. I therefore find that the tenant has established a prima facie case.

20. In regard to the second principle, I find and hold that the illegal closure of the premises is sufficient injury to the tenant capable of being restrained by way of an injunction. In this regard, I rely on the decision of the Court of Appeal in Thomson Smith Aikman, Allan Malloy and others- vs- Muchoki & Others (1982) eKLR at page 4/6 where it was held as follows:-

“Those who flout the law by infringing the rightful title of others and brazenly admit it, ought to be restrained by injunction. If I am adding a new dimension for the grant of an interlocutory injunction, be it so. Equity will not assist law-breakers”.

21. On the third principle, I find and hold that the balance of convenience is in favour of granting the orders sought.

22. The landlord contends that he lost rental income when the tenant left the premises equivalent to 3 months rent. I have not seen any notice to terminate tenancy by either party and do not understand the landlord’s submission in that regard.

23. I have looked at the reference and the same raises issues similar to those in the application. As a result, this ruling shall also apply to the reference.

24. In the premises, the final orders that commend to me are:-

(a) That an order for injunction is hereby issued restraining the landlord from closing the tenant’s business premises without reference or authority of this Tribunal.

(b) Costs of Kshs.10,000/- is awarded to the tenant against the landlord.

(c) The said costs shall be defrayed against the rent account.

(d) This ruling shall apply to the reference which is hereby marked as settled.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 14TH DAY OF DECEMBER 2021 VIRTU7ALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling read in presence of parties/advocates