[2021] KEBPRT 371 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 647 OF 2020 (NAIROBI)

HESBON MUITA T/A................................................TENANT/APPLICANT

VERSUS

AGRICULTURAL SOCIETY OF KENYA

NAIROBI BRANCH........................................LANDLORD/RESPONDENT

RULING

1. Before me is a motion dated 18th June 2020 in which the Tenant/Applicant in material part is seeking for an order directing the Landlord/Respondent to immediately allow him access to the suit premises at Jamhuri Show grounds to enable him conduct his business pending hearing and determination of the suit.

2. The said application is supported by the Tenants affidavit of even date.

3. The Tenant carries on business of manufacturing animal feeds concentrates at Jamhuri show grounds from the year 2001 under the name champion papyrus and later as Champion Products Distributors limited.

4. The Tenant entered into a lease agreement with the Respondent in relation to the suit premises in which the monthly rent was agreed at Kshs.8,000/- in the year 2004.

5. In 2008, the Respondent increased rent arbitrarily for all tenants as a consequence of which BPRT case no. 285 of 2008 was filed and this Tribunal directed the Tenants to continue paying the old rent pending hearing interpartes.

6. Parties entered into out of court negotiations and in the process, the Landlord engaged the services of Kindest Auctioneer to attach the Tenant’s property.

7. The Tenant’s property valued at Kshs.810,000/- was proclaimed in recovery of alleged rent arrears.

8. By a letter dated 30th May 2021 the Respondent acknowledged the rent payable by the Tenant to be Kshs.10,600/-.

9. On 19th March 2020, the show ground manager is said to have cut down a tree which fell on the premises demolishing part of the house and roofing exposing it to vagaries of weather and damage to the machines belonging to the Tenant.

10. From January 2020, the Respondent’s security guards were instructed but its General Manager to deny access to the Tenant and his employees into the premises leading to closure of the business and financial loss.

11. Despite this turn of events, the Tenant contends that he has endeavoured to pay rent arrears owing to the Respondent.

12. The invoices rendered to the Tenant were based on the illegally increased rent, it is for the said reason that the Tenant came to court.

13. The Tenant is therefore seeking for interim mandatory injunction order to compel the Respondent to allow him to have peaceful enjoyment of the premises as well as return the property attached by Kindest Auctioneer.

14. The Tenant deposes that owing to Covid-19 pandemic, he was having a hard time supporting himself without access to the suit premises where he conducts his business.

15. On 21st July 2020, the Landlord/Respondent filed a notice of preliminary objection and a replying of affidavit sworn by one Batram Muthoka who is its CEO.

16. The Respondent opposes the application saying that it was a society duly exempted from registration under the societies Act, Cap. 108, Laws of Kenya.

17. As such, the Respondent contends that it is not a body corporate capable of suing or being sued in its own name and can only be sued in the name of officials and/or registered trustees as per its certificate of incorporation marked “BM2” attached to the replying affidavit.

18. The Respondent deposes that having been wrongly sued, the application and entire Reference are fatally defective and unsustainable in Law for being incompetent.

19. It is further deposed that BPRT case No. 285/2008 was withdrawn against the Respondent.

20. The Respondent has denied the allegation that it arbitrarily increased rent payable by the Applicant as its policies stipulate a 20% rent increment after every two years and the Applicant was duly notified of the same long after Rent Tribunal case no. 285/2008 to which he was not party.

21. The Respondent contends that the Applicant is guilty of being in rent arrears dating back to 2008 and was a habitual defaulter whose rent arrears stood at Kshs.316,769/82 and cannot expect to have equitable remedies from the Tribunal.

22. On 9th March 2020, the Applicant wrote a letter to the Respondent admitting that he was in rent arrears and sought for indulgence from the Respondent.

23. It is denied that the Respondent’s General Manager went to the Applicant’s premises and cut down a tree which fell on the premises as claimed.

24. According to the Respondent, the Applicant is estopped from complaining about attachment which took place in 2009 as the claim is now statute barred.

25. The Respondent contends that a mandatory injunction can only be issued in very clear cases and that if this Tribunal was minded to issue the same, the Applicant should deposit the rent arrears in court pending hearing and determination of the Reference.

26. The Respondent deposes that the Applicant was in rent arrears prior to covid-19 pandemic and should not take advantage thereof and that it would be unjust and unconstitutional to allow the Applicant back into the premises without paying rent.

27. The Tenant filed a further affidavit sworn on 27th July 2020 arguing that since the tenancy agreement between him and the Respondent was not in writing the same was controlled and as such within the Tribunal’s jurisdiction.

28. He contends that since the Respondent is incorporated under the Land (perpetual succession) ordinance Cap. 164, Laws of Kenya, it is capable of suing and being sued in its own name.

29. All correspondence, letters and receipts from the Respondent are always in its name including invoices issued to the Tenant.

30. The Applicant asserts that he cannot be expected to remit rent when the premises are closed by the Respondent.

31. The Applicant has denied being indebted to the Landlord in the sum of Kshs.316,769. 82 as claimed in the replying affidavit.

32. It was directed that the application be canvassed by way of written submissions and both counsels duly filed their respective submissions.

33. From the foregoing pleadings, the following issues arise for determination:-

(i) Whether this Tribunal has jurisdiction to hear and determine the case.

(ii) Whether the Respondent is capable of being sued.

(iii) Whether or not the Applicant is entitled to the orders sought.

(iv) Who is liable to pay costs of the application?.

34. The jurisdiction of this Tribunal is set out under section 2 (3) of the Landlord and Tenant (shops, Hotels and catering Establishment) Act, Cap. 301 Laws of Kenya which defines a controlled tenancy as a tenancy of a shop, hotel or catering establishments which has not been reduced into writing and which is for a period not exceeding five years or contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof.

35. I have looked at the documents exhibited by both parties and have not seen any written agreement to regulate the relationship between the Landlord and the Tenant.

36. I have gone through the affidavits of both parties and have not come across any averment that the demised premises is not a controlled tenancy. This issue has been raised in the Landlord’s submissions and the Tenant has therefore been ambushed in this regard.

37. It is trite law that parties are bound by their pleadings and a court of Law is supposed to determine issues based on such pleadings. I hold that submissions cannot be treated as a pleading and the issue as to whether the Tenant uses the premises as a shop outlet shall therefore require to be subjected to evidence tendered during the hearing.

38. I therefore find and hold that the tenancy is a controlled one and this Tribunal has jurisdiction to hear and determine the application and Reference.

39. As to whether the Respondent is capable of being sued or not, I only need to refer to Article 260 of the Constitution of Kenya, 2010 which defines the term person to include:-

“…..a company, association or other body of person whether incorporated or unincorporated”.

40. The Respondent is exempted from registration under the societies Act but has trustees under the Trustees (perpetual succession) Act and a certificate of incorporation. It is thus capable of suing and being sued. In any case whether incorporated or not, it remains a person within the meaning and interpretation of Article 260 of the Constitution of Kenya, 2010. I need not belabor that the Constitution is the Supreme Law of the land and any other law that is inconsistent with it is void to the extent of the inconsistency under Article 2(4) thereof.

41. As to whether or not the Applicant is entitled to the orders sought or not, I only need to consider the principles of injunction espoused in the case of GIELLA – VS- CASSMAN BROWN & CO. LTD (1973) EA. 358 and the jurisprudence emerging therefrom.

42. The Tenant complains that from January 2020, the Respondent’s security guards were instructed to deny him access to the demised premises leading to closure of the business and financial loss.

43. This act was not backed by a court order or clothed with any form of legality. The Respondent has not denied the said allegation and contends that it would be unjust and unconstitutional to allow the Tenant back into the premises without paying rent.

44. The Landlord and Tenant (shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya provides the manner of recovery of possession from a tenant who has defaulted in paying rent under section 7(1)(b) thereof. No notice to terminate tenancy under the said Act has been issued by the Respondent.

45. Secondly, the Respondent admits that it has been increasing rent at 20% every two years under what it calls “tenancy policies” and there is need to interrogate at the hearing the legality of such policies visa vis the provisions of Cap. 301, Laws of Kenya.

46. The rent arrears claimed by the Landlord/Respondent against the Tenant are disputed and ought to be proved at the main hearing.

47. From the foregoing findings, I hold that the Applicant has established a prima facie case with a probability of success.

48. As to whether the Applicant might suffer irreparable injury which is not capable of compensation by way of monetary damages, this Tribunal ought to consider the same against the acts complained of.

49. The Tenant complains that the Landlord’s denial of access to the premises led to closure of the business for the last over one year and a half. The Landlord wishes to maintain the status quo by arguing that it would be unconstitutional and unjust to allow access of the premises to the Tenant.

50. I wish to adopt the sentiments of the Court of Appeal in M/S GUSII MWALIMU INVESTMENT CO. LTD (1996) eKLR at page 7/17 where it was observed as follows:-

“I have no hesitation whatsoever in holding that the Landlord did all it could to obtain the possession in making the orders he made If what the Landlord did in this case is allowed to happen we will reach a situation when the Landlord will simply walk into the demised premises exercising the right of re-entry and obtaining possession extra-judicially. A Court of Law cannot allow such state of affairs whereby the law of the jungle takes over. It is trite law that unless the Tenant consents or agrees to give up possession, the Landlord has to obtain an order of a competent court or a statutory tribunal ( as appropriate) to obtain an order of possession”.

51. Citing the English case of THOMPSON –vs- PARK (1944) 2 ALL E.R. 477 at page 9/17 the court went on to hold as follows:-

“A litigant cannot wrongfully and illegally bring about a state of affairs and then apply to court to preserve that state of affairs as the status quo by way of an injunction……………………….

The status quo that could be preserved was the status quo before these illegal and criminal acts on the part of the defendant. It is a strange argument to address to a court of Law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he has done and say that would be preserving the status quo and that it would be a good reason for not granting an injunction”.

52. In line with the said decision, I find and hold that the Applicant/Tenant is entitled to the reliefs sought.

53. On the issue of costs, the same always follow the event unless for good reasons the court finds otherwise and I proceed to grant costs of the application to the Applicant/Tenant assessed at Kshs.30,000/- to be defrayed against the rent account.

54. The upshot of the above is that the Tenant’s application succeeds and I hereby make the following orders:-

(a) That the Respondent is hereby directed by itself, agents, servants, employees and trustees to immediately and unconditionally grant the Applicant/Tenant access to the suit premises located at Jamhuri Show grounds to enable him conduct his business without any interference in any manner pending hearing of the Reference.

(b) That the Officer Commanding Kilimani Police Station or the Police Station within whose jurisdiction the suit premises is situate shall assist in enforcing compliance with these orders.

(c) That the Tenant is awarded costs of Kshs.30,000/- for the application which shall be offset against the rent account.

(d) That the period between closure and re-opening of the suit premises shall not be taken into account in computation of the rent owing.

(e) That any repairs necessary for the exterior of the demised premises shall be effected by the Landlord/Respondent failing which the same shall be undertaken by the Tenant at the Landlord’s costs within 30 days hereof.

(f) The main Reference shall be set down for hearing on all other issues not determined through this ruling on priority basis.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 30TH DAY OF JULY 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mr. Simiyu for the Applicant.