[2021] KEBPRT 140 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 558 OF 2020 (NAIROBI)

EMMANUEL MUSUNDI....................................APPLICANT

VERSUS

SAMUEL WAWERU..................................... RESPONDENT

JUDGMENT

1. This matter was instituted through a reference dated 3rd June 2020 pursuant to which the Tenant complained that the Landlord had unlawfully closed his business with all goods of trade inside with a sole intention to evict him in contravention of Cap. 301, Laws of Kenya.

2. The Tenant simultaneously filed a motion dated 3rd June 2020 seeking various orders 4 of which were granted ex-parte.

3. Prayer 3 of the application sought for restraining orders against the Landlord/Respondent from interfering with his peaceful and quiet occupation of the suit premises at Uthiru along Mukiri road pending hearing of the case.

4. A second application dated 16th June 2020 wherein the Applicant was granted an order against the landlord to immediately return the tenant’s goods of trade, stocks and all other property carried away by him.

5. The landlord filed a replying affidavit sworn by him on 1st July 2020 in opposition to the application dated 3rd June 2020.

6. On 29th July 2021, the matter was directed to be disposed of by way of written submissions. This followed previous directions on 15th June 2021 that the tenant files witness statement following his filing of documents on 18th February 2021 together with witnesses statement dated 8th June 2021.

7. The Tenant filed his witness statement dated 8th June 2021, wherein he states that he occupied the suit premises in December 2018 after paying one (1) month rent deposit and one (1) month advance rent. The premises is known as ‘K-5’.

8. When the premises in ‘K4’ fell vacant, the tenant in ‘KC’ took it and started running a fast food outlet similar to that run by the Tenant herein and bad blood developed on account of competition between the two businesses.

9. In August 2019, K4 premises got burnt but the fire was put off. The landlord undertook repairs on Kiosk no. K4 & 5. The damage on ‘K5’ was merely smoke stains which were erased by a single coat of paint.

10. On 9th December 2019, kiosk no. K5 belonging to the tenant suffered the same fate but the fire was quickly put off. The landlord directed the tenant to repair the premises at his own cost to its original condition.

11. After doing so and paying rent, the tenant was issued with a notice to vacate on 19th December 2019. The tenant questioned the landlord and objected to the termination of tenancy.

12. The landlord informed the tenant to change his business in two (2) months as no electrical cooking would be permitted in any shop. The tenant started stocking sanitizers and other related items in readiness to change the type of business as advised by the landlord.

13. Before expiry of the two months, the landlord cut power supply to the tenant’s shop but continued to receive rent. The tenant paid January to May 2021 rent.

14. On 2nd June 2021, the tenant received information of breakage into the suit premises and removal of his items by the landlord. He called the landlord who admitted breaking into the premises and challenged him to go and seek redress.

15. On 3rd June 2021, the tenant visited the landlord’s home to seek an explanation but he was told the eviction decision was final. The landlord required the tenant to pay Kshs.300/- daily storage charges for the goods. This according to the tenant was more than the reserved rent.

16. The Tenant reported the issue to Kabete Police Station vide O.B No. 66 of 5/6/2020. Upon being called by the OCS, the Landlord referred him to his unnamed lawyers.

17. This led the OCS to advise the tenant to seek redress before this Tribunal. On 5th June 2020, the tenant was issued with orders to reinstate him back to the premises. The landlord defied the orders.

18. On 16th June 2020, the tenant applied for orders for release of his tools of trade which were granted on 2nd July 2021. Despite service, the landlord defied to comply.

19. The Tenant denies ever receiving any summons to appear before the Chief over the matter. The rent receipts are said to be held by the landlord together with the goods removed from the suit premises.

20. On his part, the landlord filed a witness statement dated 17th February 2021 wherein it is admitted that the tenant has been in occupation of the business premises since January 2019 operating a hotel.

21. It is contended that the Tenant refused to execute a lease agreement handed over to him by the landlord. In August 2019, the suit premises went up in flames and it emerged that the tenant had negligently left food boiling on an electric heater causing the fire which affected his premises and a neighbouring one.

22. The tenant failed to meet expenses of repairing the premises as a result of which the landlord made good the repairs.

23. In December 2019, another fire engulfed the tenant’s shop and it emerged that a deep fryer had been left on occasioning the same. The Tenant refused to meet the repair expenses.

24. As a result, the landlord approached the area chief, Uthiru location to adjudicate on the matter who summoned the tenant to attend on 13th December 2019. He failed to appear.

25. On 28/12/2019 and 20/4/2020, the Landlord gave the tenant notice to vacate the suit premises for reasons that he had occasioned two fires and the landlord was not willing to take any risk by having him in the premises.

26. The tenant is said to have blatantly ignored the notices and continued carrying on his business on the suit premises until June 2020. He further failed to pay accrued rent arrears amounting to Kshs.26,500/-.

27. On 2/6/2020, the landlord together with the area chief, the ‘Nyumba Kumi’ initiative representative one Margaret Mbiyu took the inventory of the items in the Tenant’s premises listed in the witness statement numbering 25.

28. The said items are said to be stored in the landlord’s premises and continue to attract Kshs.300/- daily in storage charges. The landlord claims Kshs.120,560/- in repair costs exclusive of roofing. He states that he was willing to release the items to the tenant as soon as he settles the outstanding rent arrears, repair costs and storage fees.

29. The landlord filed a further witness statement by one Margaret W. Mbiyu, the chairperson of ‘Nyumba Kumi’ initiative. She confirms that on 2nd June 2020, she was notified by the area chief one Maina Kirugo that there was a tenant who had ignored all attempts from the area administration to settle outstanding rental arrears.

30. The chief informed her that the landlord’s notice had expired and as the area administration, they had an obligation to oversee the landlord’s take over of the suite premises. She accompanied the chief to the suit premises for purposes of taking an inventory of the tenant’s items.

31. She has listed 25 items removed from the suit premises by the landlord and stored by him under their supervision.

32. The tenant on the other hand filed a list of 45 items on 7th January 2021 ascribing the cost of each item totaling to Kshs.238,280/-.

33. The landlord’s advocates did not file submissions as directed on 29th July 2021. The tenant’s advocates complied and have submitted that the landlord continued being in contempt of court by failing to return the tenant’s tools of trade, stocks and all other properties in his custody. As such it is the Tenant’s case that the landlord should be denied audience under section 4 of Contempt of Court Act no. 46 of 2016.

34. The tenant further submits existence of a landlord/tenant relationship going by evidence tendered before the Tribunal. The landlord failed to adhere to section 4(1) (2), (4) and (5) of Cap. 301, Laws of Kenya. No notice in the prescribed form was issued by the landlord.

35. The notices in form of letters dated 28/12/2019 and 20/4/2020 at pages 3 and 4 of the landlord’s list of documents dated 17/2/2020 according to the tenant are not in the prescribed form as required under section 4(2) of Cap. 301, Laws of Kenya.

36. According to the tenant, the Chief and the ‘Nyumba Kumi’ initiative have no jurisdiction over landlord/tenant matters. The landlord gained access to the premises arbitrarily and confiscated the tenant’s goods without adhering to the law.

37. It is submitted that the tenant is entitled to compensation for loss suffered as a result of the landlord’s unlawful actions by denying him access to the business premises and illegally detaining his tools of trade valued at Kshs.238, 280/- plus rent deposit and costs of the suit.

38. The tenant submits that he is entitled to the orders of injunction in line with Giella – vs- Cassman Brown & company Limited (1973) EA 358 and Mrao Ltd –vs- First American Bank of Kenya & 2 others (2003) KLR 125 and had met the threshold set out therein.

39. The issues for determination are:-

(a) Whether there exists a landlord/tenant relationship between the two parties herein.

(b) Whether the said relationship has lawfully been terminated.

(c) Whether the landlord is entitled to repair costs and arrears claimed.

(d) Who is liable to pay cost of the reference?

40. I have already analysed the pleadings and evidence tendered and shall address all the issues together in a sequential manner.

41. It is not in dispute that there exists a landlord/tenant relationship between the two parties. The same is not in writing and fits in the definition contained under section 2(1) of Cap. 301, Laws of Kenya.

42. I have seen the letters dated 28/12/2019 and 20/4/2020 purporting to terminate the tenancy between the Landlord and the tenant and find that the same are not the prescribed notices envisaged under section 4(2) of Cap. 301, Laws of Kenya.

43. In the case of Fredrick Mutua Mulinge t/a Kitui Uniform – vs- Kitui Teachers Housing Cooperative Society Limited (2017 eKLR at page 4 the Environment and Land Court had the following to say on the effect of a defective notice:-

“In the case of Manver N. Alibhai t/a Diani Boutique – vs- South Coast Fitness and Sports Centre Limited Civil Appeal No. 203 of 1994, this court stated:-

“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated and no term or condition in or right or service enjoyed by the tenant of any such tenancy shall be altered otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice”.

44. Several other cases were cited by the said court and the common thread running through all the decisions is that a controlled tenancy cannot be terminated otherwise than through the prescribed procedure. In absence of such a legal termination, the tenancy is deemed as valid and existing. This is the position herein.

45. A party cannot bring about an illegal state of affairs and thereafter claim that the same cannot be interrogated on account of want of jurisdiction.

46. The landlord still holds the tenant’s goods despite orders to release the same. Insisting on payment of alleged rent arrears and repair costs without bringing an application or proper reference is misconceived.

47. The tenant claims compensation for the items illegally removed from the premises valued at Kshs.238,280/- which has not been controverted by the landlord. I have no reason to disbelieve the tenant on the said values moreso granted that any documents that could possibly have been used in prove of the said claim are held by the landlord.

48. In regard to the landlord’s claim to payment of Kshs.120,560/- as repair costs and Kshs.26,500/- as rent arrears, I note that there is no single application or other form of claim before me for the said amounts and I have no basis upon which I can exercise jurisdiction to award the same.

49. As to whether the tenant is entitled to the reliefs claimed, I only need to cite the decision in Aikman – vs- Muchoki (1982) eKLR at page 4/6 wherein Madan J.A (as he then was) while considering a similar matter had the following to say:-

“Those who flout the law by infringing the rightful title of others and brazely 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……….I will not subscribe to the theory that a wrong doer can keep what he has taken because he can pay for it. The real injury arose from the unlawful seizure of the estates by the defendants in defiance of the law. As in the circumstances, the plaintiffs could not fail to succeed the status quo first had to be restored”.

50. In the present case, the landlord wrongfully removed the tenants property from the suit premises and despite having been ordered by this Tribunal to release the same failed to do so. The status and whereabouts of the said goods could not be ascertained. As such under section 12(4) of Cap. 301, this Tribunal is entitled to award compensation for the illegally seized property to the tenant.

51. The upshot of the foregoing is that the complaint succeeds in its entirely and I proceed to make the following final orders:-

(a) The Landlord shall pay to the tenant a sum of Kshs.238,280/- being the value of the unlawfully seized goods from the suit premises.

(b) A declaration be and is hereby made that the termination of the landlord/tenant relationship herein was unlawful.

(c) The tenant’s cost of this suit assessed at Kshs.60,000/- is awarded against the landlord.

DATED, SIGNED & DELIRED THIS 5TH DAY OF NOVEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in absence of the parties.