[2022] KEBPRT 6 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E806 OF 2021 (NAIROBI)

DICKSON RIRI MONJO................................TENANT/APPLICANT

VERSUS

CLEMENT NDUNGU KINYANJUI......LANDLORD/RESPONDENT

RULING

1. The tenant moved this Tribunal vide a reference dated 23rd October 2021 complaining that the landlord had without leave of the Tribunal levied unlawful distress for rent.

2. He simultaneously filed a motion of even date seeking for restraining orders against the landlord from levying distress and attaching property listed in the proclamation dated 14th December 2021.

3. The application is supported by the affidavit of the tenant sworn on 23rd December 2021 and the grounds on the face thereof. The main complaint by the tenant is that the Respondent without any colour of right or justification or leave of the Tribunal issued a proclamation notice through Little Vineyards Auctioneers for distress of rent.

4. It is the tenant’s case that the said proclamation is illegal and unjustified in that it was done without permission and sanction of this Tribunal contrary to provisions of section 12(1)(a) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya.

5. The tenant contends that the property attached belongs to his customers and that he has been paying rent to the landlord who does not issue receipts nor keep proper records.

6. According to the tenant, he is protected and the landlord ought to have sought leave of the Tribunal if he wished to levy distress.

7. The proclamation notice is attached as annexture ‘DRM-1’. The Tenant deposes that he was apprehensive that the Respondent unless stopped would cause his customers’ properties to be attached, vandalized and destroyed yet the business was his only source of livelihood. He therefore stood to suffer irreparable harm and injustice.

8. The application is opposed through the landlord’s replying affidavit sworn on 31st January 2022 wherein the tenant is accused of non-disclosure, untruths and in bad faith.

9. It is the landlord’s case that he and the tenant entered into a tenancy agreement in respect of the demised premises on 29th October 2020 with the monthly rent being agreed at Kshs.15,000/-. The agreement is marked ‘CN1’.

10. The landlord deposes that he always issues rent payment receipts to the tenant and has exhibited copies thereof as annexture ‘CN2’. As at December 2021, the tenant is said to have been in rent arrears of Kshs.231,000/- which he had ignored to pay despite various reminders and demands.

11. It is the landlord’s case that he has a constitutional right under Article 40 of the Constitution of Kenya to enjoy his property and derive benefits therefrom. The tenant had a statutory obligation to pay rent under Section 66 of the Land Act, 2012 and the right to quiet enjoyment of possession was conditional upon payment of rent.

12. The landlord admits having instructed Little Vineyards Auctioneers to distress for rent in the sum of Kshs.231,000/- as at December 2021. Upon service of proclamation notice, the tenant rushed to this court claiming there were no outstanding rent arrears.

13. In full acknowledgement of his indebtedness to the landlord, the tenant issued a cheque of Khss.100,000/- to the former. The same is marked as annexure ‘CN3’. As such the application is said to have been brought in a bid to protect him from fulfilling his obligations under the Land Act and the lease agreement.

14. According to the landlord, the tenant’s non-disclosure of indebtedness is intentional and calculated to mislead the court to grant underserving orders.

15. The tenant is accused of coming to court with unclean hands and using the judicial system to subvert justice and oppress the landlord.

16. As such the applicant is said not to have established a prima facie case with a probability of success to warrant granting of the discretionary remedy of injunction.

17. I am now required to determine the following issues:-

a. Whether the tenant is entitled to the reliefs sought in the instant case.

b. Who is liable to pay costs?

18. The application was ordered to be canvassed by way of written submissions but only the applicant filed. I shall consider the submissions together with the issues framed above.

19. The principles upon which applications for injunctions are considered by courts were long settled in the case of Giella – vs- Cassman Brown & Co. Ltd(1973) EA 358 and need not be repeated.

20. The applicant came to this Tribunal complaining that the landlord had issued a proclamation notice for distress of rent in the sum of Kshs.231,000/- without seeking leave of this Tribunal. It is also the applicant’s case that no rent was in arrears and that the landlord does not issue rent payment receipts neither does he keep proper records.

21. On the other hand, the landlord contends that the tenant owed Kshs.231,000/- in rent arrears and that he always issues rent payment receipts to the tenant.

22. Section 107(1) of the Evidence Act, Cap. 80 Laws of Kenya provides as follows:-

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

23. Section 109 of the said Act provides as follows:-

“The burden of proof as to any fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”.

24. Whereas the tenant claims to have paid rent to the landlord and to have had no arrears by the time the proclamation notice was issued, he did not adduce any evidence on how the payments were done. His claim that the landlord does not issue receipts for rent payments was contested with evidence of receipts marked ‘CNK2’. The landlord also alluded to annexure ‘CNK3’ being a cheque payment of Kshs.100,000/- made by the tenant after obtaining the ex-parte orders towards the claimed rent arrears.

25. The said payment coupled with the fact that the tenant did not swear a further affidavit to controvert the contents of the landlord’s replying affidavit makes me believe that the tenant was truly indebted to the landlord in the sum of Kshs.231,000/- in rent arrears.

26. The tenant submits that the landlord was not entitled to levy distress without leave of the Tribunal in view of provisions of Section 12(1) (h) of cap. 301, Laws of Kenya.

27. The landlord on the other hand deposes that no such leave is required under Section 3(1) of the Distress for Rent Act, Cap. 293, Laws of Kenya. I entirely agree with the Respondent’s position.

28. In the case of John Nthumbi Kamwithi – vs- Asha Akumu Juma (2018) eKLR, the High Court had the following to say on the issue at paragraph 35 of the judgment.

“I find that the applicant had no obligation to seek permission from the tribunal to levy distress under section 3(1) of the Act. As I have said earlier, the Act has no provision applying for orders authorizing permission levying of distress of rent from the Tribunal”.

29. In the premises, the landlord was entitled to instruct an auctioneer to levy distress for the rent arrears owing by the tenant without leave of this Tribunal.

30. In the foregoing circumstances, the tenant having been in rent arrears and having failed to disclose the same to this tribunal obtained the ex-parte orders irregularly and the same are subject to discharge for non-disclosure of material facts.

31. It is therefore my considered view that the applicant has failed to bring himself within the principles of granting an injunction.

32. As regards costs, the same are in the court’s discretion but always follow the event unless for good reasons otherwise ordered. The Respondent in this case is entitled to costs of the application and the reference.

33. Flowing from the above analysis, the following final orders commend to me in respect of the application and the entire reference:-

i. The application dated 23/10/2021 and the reference of even date is hereby dismissed with costs.

ii. The ex-parte orders given on 4th January 2022 are hereby discharged and/or vacated.

iii. The landlord’s costs are assessed at Kshs.25,000/- all inclusive.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF APRIL, 2022

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Gachugu holding brief for Ambani for Tenant/Applicant

Atilanda Mona holding brief for Miss Nganga for Landlord-Respondent