[2024] KEBPRT 437 (KLR)

Irungu v Kiriamburi (Tribunal Case E1012 of 2023) [2024] KEBPRT 437 (KLR) (2 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 437 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1012 of 2023

M Makori, Member

February 2, 2024

Between

Alice Wanjiru Irungu

Applicant

and

Viniuis Mwenda Kiriamburi

Respondent

Ruling

1. The Applicant/Tenant approached this Honourable Court vide an application dated 12/10/2023 as well as a Reference dated the same date being the 12/10/2023 challenging the Respondent’s Decision to lock up his shop.

2. The application was opposed vide a Replying Affidavit dated 02/11/2023 and further supported by applicant’s Supplementary Affidavit that is neither dated nor commissioned.

3. It can be discerned from the pleadings that a relationship in nature of a Tenant-Landlord existed and though it formally lapsed sometimes in 2019, the Tenant has been in occupation of the suit property and where they have admitted to be paying a monthly rent of Kshs 20,000/=

4. The Tenant/Applicant avers that they have been paying rent as required up to and until the Landlord/Respondent closed his shop sometime in October, 2023.

5. The single most issue for determination by this court is whether the Respondent/Landlord could distress for rent in the manner he did and what is the available remedies?

6. Before delving into the issue I wish to note that Section 4(1) of Cap 301 provides that no tenancy shall be terminated, or no term or condition, or right or service enjoyed by the tenant shall be altered otherwise than in accordance with the provisions of the Act.

7. The Act further provides for the grounds on which the Landlord may seek to terminate the tenancy in Section 7. The grounds stated under this provision and which are applicable herein include; -i.that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;ii.that the tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant’s use or management of the premises comprised in the tenancy; andiii.that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises;

8. From the record the court was curious to understand which version of narration is believable and well supported. The Tenant averred that they have been paying rent in full. The Respondents on the hand disputed that position and in addition to providing breakdown of the amount owing.

9. The Tenant/Applicant in further rebuttal filed a supplementary affidavit which was unfortunately not dated nor signed. What is clear however is that there is some rent in arrears that is pending payment.

10. While the Tenant/Applicant avers that they have rent arrears of Kshs 30,000/=, the Landlord/Respondent avers that the rent owing is Kshs 70,000/=. This Court is as thus lost as to what is the correct figure for the rent in arrears.

11. That upon nonpayment of Rent arrears by the Applicant/Tenant, the Respondent decided to levy distress over the suit property by disconnecting the power supply and closing the suit premises.

12. The right to levy distress is reserved under section 3 of the Distress for Rent Act, Cap 293 of the Laws of Kenya, which provides; -“subject to the provisions of this Act and having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the Common Law of England in a similar case.”

13. In seeking to make the appropriate orders in view of the foregoing, I am guided by section 12(1)(e) of Cap 301 which grants the Tribunal power; -“To make orders upon such terms and conditions as it thinks fit for the recovery of possession and for the payment of arrears of rent and mesne profits which orders may be applicable to any person whether or not he is a Tenant, being at any material time in occupation of the premises comprised in a controlled tenancy.”

14. That it is with no doubt in my mind that Applicant/Tenant is in arrears and the Respondent subject to following the right procedure are entitled to distress for rent owing from the Applicant/Tenant.

15. Without paying rent in full and additionally admitting to have some arrears, the Applicant/Tenant approaches this court for orders against the Respondents.

16. He who comes to equity must come in clean hands and as thus before seeking orders that have permanent effect, the Tenant/Applicant ought to clear all the arrears in rent that they have and/or believe to have.

17. Before concluding this ruling, I wish to adopt what the superior court stated in the case of Samuel Kipkori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR at paragraphs 9 and 12 as follows: -“9. 9. A tenant’s first and main obligation is to pay rent as and when it becomes due, for the Landlord has the right to an income from his investment….”

“12 The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is underserving the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principle obligation of paying rent as and when it becomes due”.

18. In the circumstances of this case, I will therefore allow prayers 3 and 4 of the Tenant’s application dated 12/10/2023 on condition; -i.That Landlord/Respondent is ordered to restore electricity and Re-open the demised property forthwith and Restrained from interfering with the Tenant/Applicant’s quiet occupation subject to payment of rent as agreed.ii.That in exercise my discretion I grant the applicant/Tenant 60 days from today within which to pay any outstanding arrears failure to which the Landlord/Respondents shall be at liberty to levy for distress.iii.That OCS Muthangari Police Station to oversee implementation of this Orders.iv.Each party shall bear its costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF FEBRUARY 2024HON. MIKE MAKORI (MR.) MEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Madam Alice Wanjiru Irungu – tenant in personMr. Irungu for the Respondent