[2021] KEBPRT 478 (KLR)
The court found that the applicant was in breach of the lease agreement by failing to pay rent as agreed and did not make any proposal for settlement of arrears. The applicant also failed to disclose the existence of a mutual agreement to clear arrears by a specific date, which she did not honor. The court held that...
Source-derived case information.
- Citation
- [2021] KEBPRT 478 (KLR)
- Parties
- Applicant: Esther Mwangi; Respondent: Thomas Otiede Ogada
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 200 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Landlord Tenant Disputes, Injunctive Relief, Breach of Lease, Rent Arrears
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Mwangi
Applicant
Thomas Otiede Ogada
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to injunctive relief restraining the landlord from interfering with her tenancy and occupation of the premises.
- 2 Whether the landlord was justified in closing the premises for non-payment of rent.
- 3 Whether the applicant's failure to disclose the mutual agreement and to propose settlement of arrears disentitles her to equitable relief.
Ratio Decidendi
The court found that the applicant was in breach of the lease agreement by failing to pay rent as agreed and did not make any proposal for settlement of arrears. The applicant also failed to disclose the existence of a mutual agreement to clear arrears by a specific date, which she did not honor. The court held that it is not its duty to rewrite contracts for parties and that, absent any pleaded vitiating factors such as coercion or fraud, the contract must be enforced as agreed. Consequently, the applicant was disentitled to the equitable remedy of an injunction, and her application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The tenant's application is dismissed with costs of Kshs 10,000 to the landlord/respondent.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE BUSINESS PREMISES RENT TRIBUNAL
VIEW PRK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 200 OF 2021 (NAIROBI)
ESTHER MWANGI.....................................................TENANT/APPLICANT
VERSUS
THOMAS OTIENDE OGADA...........................LANDLORD/RESPONDENT
RULING
This matter was instituted vide a reference dated 26th February 2021 by the Tenant. She simultaneously filed a motion dated 26th February 2021 seeking that the Landlord be ordered to reopen and allow her access to the business premises.
She also sought for restraining orders against the Landlord from interference with her tenancy and quiet enjoyment and occupation of the suit premises.
The application is supported by her affidavit of even date where she deposes that she was paying a rent of Kshs 10,000/-.
On 17th February 2021, the said business premises was closed by the Landlord thereby denying her access with all the goods inside on account of failure to pay rent for January and February 2021 in time.
The Tenant feared that she would be evicted from the suit premises.
The court granted prayer 2 of the application ex-parte and reserved the application for hearing on18th March 2021.
On 12th March 2021, the Landlord filed a replying affidavit saying that he entered into a lease agreement with the Tenant on 1st November 2020.
According to the lease agreement, rent was to be paid on or before 5th day of every month. The Tenant failed to pay rent for November 2020. She also failed to pay the January, February and March 2021rent.
It is the Respondent’s case that he had agreed mutually with the Tenant to pay the arrears by 10th February 2021 failing which the stall was to be closed and that this agreement was sufficient notice.
The Respondent admits closing the premises after the Tenant defaulted to comply with the mutual agreement aforesaid.
It is the Respondent’s case that the Tenant came to court with unclean hands and protecting her would set a bad precedent to other Tenants in the same premises.
The Respondent deposes that parties to a contract are bound by the terms thereof unless there is proof of coercion, fraud, undue influence which should also be pleaded in line with the decision in National Bank of Kenya Limited Vs Pipe Plastic Samkolit & Another [2001] KLR 112.
According to the Respondent, the orders issued in the matter are prejudicial to him since it is the Tenant who is in breach of the lease agreement.
The Applicant owes the Respondent Kshs 30,000 in rent arrears and the application ought to be dismissed with costs according to the latter.
On 16th March 2021, when the application came up for hearing, the Applicant sought for 14 days to file a response to the contents of the Respondent’s affidavit.
She was granted leave to respond within 7 days and the application was set to be heard on 7th April 2021. On the said date, she did not appear and the matter was again adjourned to 22nd April 2021.
On the subsequent date, she did not again appear and the intended response was never filed.
I have therefore considered the application vis avis the replying affidavit and find as follows;
1. The Applicant sought for injunctive relief when she clearly owed rent to the Respondent which rent she failed to give a proposal on settlement.
2. The Applicant failed to disclose that she had entered into an agreement with the Respondent to pay outstanding rent by 10th February 2021 which she failed to do.
3. The Applicant having failed to meet her part of the bargain under the written tenancy agreement and having failed to make proposals on how she would settle the arrears is disentitled to the equitable remedy of an injunction.
4. The duty of this court is to interpret contracts made by parties and not to make new contracts for them.
5. There is no pleaded vitiating factors to warrant the court to depart from what was agreed upon by the two parties.
In the premises, I have come to the irresistible conclusion that the Tenant’s application has no merit and I dismiss it with costs of Kshs 10,000 to the Landlord/Respondent.
It is so ordered.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, read and delivered virtually by Hon Gakuhi Chege this 21st day of May 2021 in the presence of the Landlord/Respondent in person.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL