[2021] KEBPRT 328 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E137 OF 2021 (NAIROBI)

GLOBAL LIFTING SERVICES LIMITED............................................TENANT/APPLICANT

VERSUS

DAIRY SYSTEMS & SERVICES LIMITED..........................................LANDLORD/TENANT

RULING.

1. The application before me is the tenant’s application dated 20th May, 2021 brought by way of certificate. The applicant prayed that the matter be certified urgent and sought orders of temporary injunction. The applicant further prayed for costs of the application. The application was certified urgent on 24th May, 2021 and the applicant was granted interim orders pending the hearing and determination of the application.

2. The Respondent upon being served by the application duly entered appearance and filed a response in the form of a replying affidavit opposing the application. It is important to set out the facts briefly that gave rise to the filing of the present application.

3. The parties are in agreement that they entered into a licence agreement which created a tenancy relationship between the parties herein. The said licence agreement has been annexed in the Replying affidavit filed by the Landlord. The term of the said agreement was twelve months. The tenancy was therefore controlled as defined under section 2 of Cap 301.

4. The Landlord avers that the tenant only paid the deposit and the rent for the first month before defaulting in paying the rents as they fell due. The Landlord was therefore compelled to issue the tenant with demand notices and reminders but the same did not elicit positive response. There is however an undated commitment on record by the tenant undertaking to clear the rent arrears by way of installments.

5. The Landlord issued instructions to the auctioneers on 11th May, 2018 to levy distress in order to recover the outstanding rent arrears. The tenant was aggrieved thus filed the present application objecting to the planned distraint for being unlawful and unprocedural.

6. This Tribunal derives power to make orders for the levying of distress by dint of the provisions of section 12(1)(h) of Cap 301. The Landlord has stated that the distraint is not illegal. They have placed reliance on sections 3 and 4 of the Distress for Rent Act. The decision in Royal Gardens Hospital v Ebrahim Omenyi Ambwere & another [2018] Eklrhad been cited in support of this position.

7. The question of the requirement for the consent of the Tribunal before carrying out distraint in controlled tenancies is now well settled as it has been litigated upon in various suits at the superior courts. In Royal Gardens Hospital (supra)the court in dealing with this question stated as thus:

“……The court found that the tenancy in question was controlled or protected under the Rent Restriction Act, and that that being the case distress for rent could not be levied without an order of the Rent Restriction Tribunal. My understanding of that is that not every distress for rent will require an order of either the tribunal or court, but only that which relates to a controlled tenancy.’Emphasis mine.

8. The Landlord was therefore under an obligation to seek leave from the Tribunal before exercising distraint. The planned distress was thus an illegality and unlawful as they did not conform to the provisions of Cap 301.

9. I will now turn to the prayers sought by the tenant. The requirements for the grant of temporary orders of injunctions are now well settled as were discussed in the celebrated case of Giella vs Cassman Brown.

10. There is no doubt that the remedies sought in the instant application are equitable. Equity requires that whoever comes to a court of equity must do so with clean hands. It is also required that he who seeks equity must do equity. The tenant herein is obliged by law to pay rent for the premises as and when required. There is documentation on record and the tenant’s own admission acknowledging to being indebted to the Landlord. The only excuse that has been proffered by the tenant for failure to pay the rent arrears is that there was a notice by Kenya Airports Authority (KAA) seeking to demolish structures constructed on the flight path.

11. The notice by KAA in my view was one that had adverse implications on the relationship between the parties herein and in their own operations. The notice would have forced the parties to renegotiate the terms of the executed agreement. There is no evidence however that the said notice provoked any activity. One would therefore infer that business went on as usual as the threats contained in the notice were either deferred or mitigated hence the same did not affect the terms of the agreement.

12. The tenant has admitted to having defaulted in payment of rent. The default constitutes a breach of their contractual obligations. The tenant has not taken any steps to rectify the default. To add salt to the injury, the tenant defied an express order of the Tribunal requiring them to pay rent as it fell due during the pendency of this litigation. The tenant has failed to prove that they have a prima facie case. Having failed on the first limb , it shall be needless to discuss on whether the tenant has satisfied the other two set requirements.

13. The upshot of this is that tenant’s application devoid of merit and is ripe for dismissal as the they have approached the Tribunal with unclean hands.

Disposition:

1. The application 20th May, 2021 is dismissed with no orders as to costs.

2. By dint of the powers vested in this Tribunal vide the provisions of Section 12 of Cap 301, the tenant is hereby ordered to clear the outstanding rent arrears within 14 days. In default, the Landlord shall be at liberty to levy distress.

It is so ordered

RULING READ, SIGNED AND DELIVERED THIS 17TH DAY OF SEPTEMBER, 2021.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mbogo for the Landlord/Respondent

No appearance for the Tenant