[2021] KEBPRT 647 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 924 OF 2020 (NAIROBI)

DUNCAN MWANGI NJENGA.......................................TENANT/APPLICANT

VERSUS

JAMES KAHARA MUCHENE.............................LANDLORD/RESPONDENT

RULING

The Tenant’s application dated25th November 2020seeks orders compelling the Respondent to reopen the Tenant’s business premises, Police assistance in the event of failure by the Respondent to cooperate and further that the Respondent be prohibited from unlawfully intercepting, harassing, trespassing, intimidating and/or evicting, closing or threatening to demolish and/or interfering with the Tenant’s quiet enjoyment in any other matter.

The Respondent/Landlord has also filed an application dated 31st December 2021 wherein he seeks that this Tribunal’s orders issued on 1st December 2020 and the application dated 25th November 2020be dismissed. The Respondent has further sought that the Tenant does pay all outstanding rent and therefrom. Both parties have filed affidavits in support of their application and replying affidavits to their rivals’ affidavits in both applications. I have considered the said affidavits in making the determination of the respective applications.

The tenancy relationship between the parties herein has not been reduced into writing. I will therefore treat the same as a controlled tenancy within the meaning of section 2(1)(a) of Cap 301 of the Laws of Kenya. That being the case, the tenancy between the parties herein could only be terminated by issuing the notice prescribed under the Act Section 4(2) of Cap 301provides that;

“A Landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant, any term or condition in or right or service enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form.”

The notice the Tenant is challenging is the one dated 3rd September 2020. It is in the following terms;

Attn: Mr Mwangi:

Re: Notice to Vacate

I note with concern over unpaid arrears from June – September 2020 amounting to Kshs 12,000/-. We hereby now request you to vacate the house (Ebenezer House) with immediate effect as early as 3rd September 2020 – 3rd November 2020 failure to which the said James Kahara Muchene (Landlord) will take action according to the law.

There will be negotiations whatsoever between the Landlord and the Tenant.

Regards

James Kahara Muchene

Landlord

The above notice is clearly not the one anticipated under section 4(2) of Cap 301. That notice has to be in the prescribed form, and further fulfil the requirements of section 4(4) and section 4(5) of Cap 301 of the Laws of Kenya. I am therefore in no doubt that the impugned notice was invalid as a ….question of law and not fact.

In line with the very ably researched submissions of counsel, I now seek to establish whether or the one limb the Tenant has established enough grounds for the grant of the injunctive orders he is seeking and later whether the Landlord is entitled to any rent arrears, setting aside of this Tribunals orders and the eviction of the Tenant. I am guided by the cases of Giella Vs Cassman Brown Co Ltd [1973] EA 358, Msao Ltd – Vs First American Bank of Kenya Ltd and 2 Others [2003] eKLR, Paul Gitonga Wanjau Vs Gathuthi Tea Factory Company Ltd and 2 Others [2016] eKLR and Mbuthia Vs Jumba Credit Corporation Ltd [1988] KLR 1.

(a) Has the Tenant/Applicant established he has a prima facie case with a probability of success?

As pointed out earlier, the Tenant herein has filed his application on the basis that the actions of the Landlord in locking his business premises and issuing him with a notice to vacate are illegal. The Tenant also claims that he has no rent arrears. There is also a claim that the Tenant leased from the Landlord an empty space which he has developed at a cost in excess of Kshs 500,000/-. The tenancy herein being a controlled tenancy, all parties must show strict adherence to the provisions of Cap 301 of the Laws of Kenya which is the sourcing statute, I have already expressed my views on the notice of termination issued by the Landlord to the Tenant in the foregoing paragraphs.

The averment by the Landlord that the Tenant voluntarily vacated shop B has been challenged by the Tenant at paragraph 11 of the Tenant’s affidavit sworn on 22nd February 2021. Indeed, the Tenant states it is the reason these proceedings are in the Tribunal. The Landlord has denied the averment by the Tenant that the Tenant has developed the suit premises, that this indeed exists no agreement with the Tenant to construct any structure on the Landlord’s property. These contrasting positions can only be distinguished at/during the hearing of the reference. The Landlord has also annexed JKM-3, a notice to terminate tenancy in the prescribed form. It is dated 4th January 2021whereas this reference was filed on 26th November 2020. The notice dated 4th January 2021is therefore not the subject of these proceedings and it shall take its own legal course, independent of these proceedings.

In these circumstances, I do hold that the Tenant/Applicant has established a prima facie case and I am guided by the definition of a prima facie case in the Mrao Case where it was stated;

“A prima facie case in a civil application includes but is not confined to a genuine and arguable case, it is a case 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 on rebutted from the latter.”

(b) Would the Tenant suffer irreparable loss that cannot be compensated by an award of damages?

The Tenant herein has stated that he has occupied the suit premises since 2010. Though it is disputed, the Tenant has also stated that he developed a hitherto empty space into the business premises it is today. The Tenant has further, in his grounds in support of his application, stated that the Respondent’s actions of closing the premises and denying him access to the premises is occasioning the Tenant and his clients untold hardship.

In determining these limits of the requirements for the grant of interlocutory injunctions, I find guidance in the submissions by counsel for the Landlord where at page 4 of the said submissions, in quoting Halburrys Laws of England, Counsel stated;

“…prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy, w here the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two district grounds. First, that the injury is irreparable and second that it is continuous. By the term irreparable injury is meant injury which is substantive and could never be adequately remedied on atoned for by damages, not injury which cannot possibly be separated and the fact that the Plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages.

Even where the injury is capable of compensation in damages, an injunction may he granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question.

In the same submissions at the same page, counsel for the Landlord while quoting from Robert Sharpe states that;

“Irreparable harm has not been given a definition of universal application; its meaning takes shape in the context of each particular case.”

The subject matter in this dispute is the business premises the Tenant seeks to preserve by his application. I am of the view that this is a proper case for the exercise of the jurisdiction by injunction, there being no guarantee the premises sought to be preserved will not be destroyed in the absence of preservatory orders. In the context of this case, I do find that the harm would be irreparable if the orders are not granted in favour of the Tenant.

Having been satisfied by the Tenant’s establishment of the first and the second requirement in the grant of the orders sought, I need not consider the balance of convenience in the circumstances.

Flowing from the above, I proceed to make the following orders;

1. That the Tenant’s application dated 25th November 2020 is allowed.

2. That the Landlord’s application dated 31st December 2020 is allowed in terms of prayer 3 only.

3. That prayer 2, 4, 5 and 6 of the Landlord’s application dated 31st December 2020 are dismissed.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Dated and delivered in open court this 6th day of April 2021 by Hon Cyprian Mugambi Nguthari in the presence ofMiss Oketch for the Tenant and in the absence of Paul & Co advocatesfor theLandlord.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL