[2022] KEBPRT 110 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E40 OF 2021 (MOMBASA)

EVA NJUGUNA MUMBI..........................................................APPLICANT/TENANT

VERSUS

TRISTAR PROPERTIES LIMITED..............................1ST RESPONDENT/AGENT

SHARIF SWALEH MOHSEN............................... 2ND RESPONDENT/LANDLORD

RULING

1. The applicant moved this Tribunal by way of a plaint dated 24th August, 2021 seeking for:-

“(a) An order of determination that the tenancy herein is a controlled and protected tenancy.

(b) An order of a permanent injunction restraining the Respondent from interfering with the quiet possession of the premises by the claimant.

(c) An order of assessment of the rent payable for the suit premises.

(d) An order for costs of the claim.

(e ) Any other relief the court deems fit to grant”.

2. The Applicant simultaneously filed a motion dated 24th August 2021 seeking a restraining order by way of injunction against the Respondent from evicting her or otherwise interfering with her quiet possession of the premises known as shop no. 0052 Block 03 on an unidentified plot situate along Bamburi- Mwisho- Ntamboni Road pending the hearing of the suit.

3. The application is supported by the applicant’s affidavit of even date and her further affidavit of 1st November 2021.

4. It is the tenant’s case that she bought the premises from one Catherine Koki Smith in April 2021 who called one Ms. Miriam who is the administrator of the 1st Respondent and confirmed that the latter had no problem with the transaction as the seller had also brought the business from one Stanley Maina. The 2nd Respondent was called and confirmed that he had accorded the “seller help and cooperation”.

5. The Applicant was also introduced to one Mr. Wafula who is an officer of the 1st Respondent in charge of managing the business premises as the new tenant in the premises.

6. The Applicant was assured that the premises had no arrears by the said Mr. Wafula who gave her a go ahead to assume the tenancy and gave her the paybill number to which rent would be payable as well as the account number on behalf of the 1st Respondent.

7. The rent payable was disclosed to be Kshs.16,000/- and the Applicant was informed that there was no existing tenancy agreement.

8. Sometimes in July 2021, the Applicant was summoned by the 1st Respondent which demanded execution of an agreement which increased rent to Kshs.25,000/- with an initial deposit of Kshs.50,000/-, agency fees of Kshs.12,500/- and advocates fees of Kshs.5000/-. She declined to sign.

9. Thereafter, the Respondents became hostile to the Applicant threatening her with eviction, disconnection of water, electricity and other utilities as well as attachment of tools of trade through auctioneers.

10. As evidence of the threats facing her, the Applicant relies on a letter marked ’EMM-3’ to which she responded through annexture ’ENM-4’ and a further letter by the 1st Respondent marked ENM-5’ giving her 7 days to vacate.

11. The foregoing presents the background upon which the instant proceedings are founded.

12. The application is opposed through a replying affidavit of Leila Awale, a director of the 1st Respondent sworn on 23rd September 2021 on the basis that the Applicant is a total stranger to the 2nd Respondent as there was no landlord/Tenant relationship and that the Tribunal lacks jurisdiction.

13. According to the Respondent, the tenant in respect of the suit premises was one Catherine Kori Adam and that the premises is a flat and not a shop. As such, the applicant has no locus standi.

14. According to the Respondents, they were not parties to the transaction of sale between the Applicant and Catherine Kori. It is the Respondent’s case that the Applicant refused to take the offer to regularize her tenancy and all receipts for payments made in respect of the suit premises are in the name of Catherine Kori.

15. Finally, the Respondents contend that the suit as filed is defective and contravenes mandatory provisions of Cap. 301, Laws of Kenya and is an abuse of court process.

16. The Applicant’s further affidavit reiterates the contents of the supporting affidavit and controverts the replying affidavit. She avers that the suit premises is a shop where she runs a salon and barber shop. All the other premises in the building are also shops as depicted in annexture ‘EMN-9’.

17. She states that the Respondents admitted in their letter of 30th July 2021 that she was in possession for over 4 months but continued to issue receipts in the name of Catherine Kori Adams.

18. On jurisdiction, the Applicant states that the Tribunal is empowered to determine whether a tenancy is protected by analyzing evidence presented and adduced.

19. All the payments made by the Applicant have been received by the Respondents through Mpesa.

20. The application was directed to be disposed of by way of written submissions and both parties complied.

21. The issues for determination are:-

(a) Whether there exists a landlord/tenant relationship between the Applicant and 2nd Respondent.

(b) Whether this Tribunal has jurisdiction to deal with the instant dispute.

(c) Whether the Applicant is entitled to the reliefs sought.

(d) Who is liable to pay costs?.

22. I intend to deal with all the issues together as they are intertwined with regard being had to the submissions of both parties.

23. It is trite law that the jurisdiction of this Tribunal can only be founded on existence of a landlord/tenant relationship in view of the decision in the case of R – vs- Chairperson Business Premises Rent Tribunal at Nairobi & Another ex-parte Suraj Properties Limited & 2 others (20216) eKLR paragraph 28 wherein the court cited with approval the decision in Pritam – vs- Ratilal & Another (1972) EA 560.

24. Although the Respondents vehemently contest that the Applicant is a tenant in the suit premises, there is evidence presented before court that she is in possession thereof and some payments towards rent have been made by her although receipts are always issued in the name of Christine Kori who is the recognized tenant of the Respondents.

25. In an application for injunction, all an applicant needs to demonstrate is a prima facie case with a probability of success. A prima facie case was defined in the case of Mrao – vs- First American Bank Ltd & 2 Others (2003) eKLR at page 8/10 as follows:-

“So what is a ‘prima facie case’, I would say that in civil cases is a case in 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 or rebuttal from the latter”.

26. It is not in dispute that prior to giving the conditions for her continued occupation of the suit premises, the Respondents acknowledge that the Applicant had been in occupation of the suit premises for over 4 months without any question. In what capacity did she occupy and refurbish the suit premises?. This is a question that can only be determined at the full hearing.

27. Secondly, the Applicant’s contention that a Mr. Wafula of the 1st Respondent was involved in the sale transaction and that the 2nd Respondent consented to the transaction has not been controverted by way of affidavits by the two persons. This leads to only one conclusion, that the same could be true.

28. Having been in possession of the suit premises, it is only fair that the substratum of the suit be maintained pending determination of the suit and as such the balance of convenience tilts heavily in favour of granting the orders sought.

29. Whereas the parties have not argued on the principles for the grant of injunction espoused in the case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358, I am of the considered view that on the basis of materials presented before me, granting an injunction would prevent an injustice being visited upon the Applicant than denying the same.

30. In the premises, the following orders commend to me:-

(a) The application dated 24th August 2021 is allowed in terms of prayer 3 thereof.

(b) This Tribunal has jurisdiction to determine the reference in terms of section 12 (1) (a) of Cap. 301, Laws of Kenya and Article 159(2) (d) of the Constitution of Kenya, 2010.

(c) The Applicant shall continue paying Kshs.16,000/- to the Respondents pending hearing and determination of the main Reference being the reserved rent agreed upon by the Respondents with their recognized tenant.

(d) Costs of the application shall abide the outcome of the main Reference.

(e) The main reference shall be fixed for hearing on priority basis upon compliance with order 11 of the Civil Procedure Rules by both parties.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED THIS 21ST DAY OF JANUARY, 2022 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Otuoma for Tenant/Applicant

Mayieka holding brief for Omwenga for Landlord/Respondent