[2021] KEBPRT 484 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 259 OF 2018 (NAIROBI)

JANE M’MBAITHA

(T/A SCOPE INTERNATIONAL DESIGNERS)..........TENANT/APPLICANT

VERSUS

D.P. NANDHIA AND KLDODHA &

OTHERS…..................................................................LANDLORD/RESPONDENT

RULING

PARTIES AND THEIR REPRESENTATIVE

1. The Tenant/Applicant, Jane M’Mbathia rented shop space on property Shop No. 4 situated on Land Reference 209/591 for business (hereinafter referred to as the “Tenant”)

2. Learned Counsel Khaminwa & Khaminwa Advocates represent the Tenant.

3. The Respondent DP Nandha & K.L. Dodhia is the registered owner and Landlord of the suit premises rented out to the Tenant. (hereinafter referred to as the “Landlord”)

4. Learned Counsel Shabana Osman & Associates represent the Respondent.

THE DISPUTE BACKGROUND;

5. On 22nd March, 2018 the Tenant moved this Court under a Certificate for orders of injunction from a distress for rent which orders were granted on 22nd March, 2018.

6. On 26th March, 2018 the Landlord moved the Tribunal under a Certificate of Urgency seeking to vacate the orders of 22nd March, 2018 on grounds that the Landlord had liberty to attach in BPRT No. 651 of 2018 as she has rent arrears of Kshs.100,000 from November 2018 and the said orders of 24th January 2018 were annexed. These orders were vacated on 4th July 2018.

7. On 26th July 2018 yet another certificate was filed for rent arrears seeking eviction and distress by the Landlord. This was countered by yet another Certificate dated 27th July 2018 by the Tenant seeking to set aside orders of 4th July 2018 vacating the orders of 22nd March 2018 and reinstate the same on the grounds of non-attendance by Counsel who had ceased acting for the Tenant leaving her unrepresented. Fast forward on 17th September, 2019 orders of unlimited access and quiet enjoyment were issued.

8. On 26th January, 2021 a Certificate of Urgency was filed for an injunction again by the Tenant which orders were granted on 1st February 2021 by Hon. P. May ex parte. A Replying Affidavit was filed on 22nd February 2021 by the Landlord and sworn on the same date.

JURISDICTION

9. The Jurisdiction of this tribunal is not in dispute.

THE DISPUTE BACKGROUND

10. There is a suit E2646/2020 filed in the Environment and Land Court by the Landlord which the Landlord succeeded and orders of attachment and sale were issued. The Landlord proceeded to break into the suit premises on 16th October 2020 but did not evict the Tenant for a claim of Kshs. 669,000. 00 in rent arrears.

11. I have also read the Ruling of Hon. Lewa SRM, dated 1st February 2021 where while dismissing the Tenant’s application the Judge also denied the existence of any orders from himself dated 16th October 2021 and referred the matter back to the Tribunal.

12. A case that was also filed is ELCOS/EO24/2020 which is pending hearing of a Preliminary Objection by the Tenant to refer the same to this Tribunal on grounds of jurisdiction. It is a suit for eviction and attachment.

THE CLAIM AND DEFENCE

13. The Tenant filed a Notice of Motion application dated 26th January, 2021 seeking orders restraining the Landlord jointly and severally by itself and/or through its agents, servants and/or employees or otherwise from proclamation, attachment and or sale of the Tenant’s tools of trade. The applicants also sought orders that the Tribunal sets aside the proclamation, attachment and or sale of the Tenant’s tools of trade as listed in the notification of sale issued by Icon Auctioneers and that the Landlord be directed to return to the Tenant all the Tenant’s property removed from the suit property.

14. The Tenant’s case is that a Notification of Sale was issued by the Landlord on 29th October 2020. That she has been making payments to the Landlord and that the dispute concerning the amount of rent arrears is still pending determination. She further averred that the Landlord has continuously interfered with their peaceful stay at the suit premises in contravention with the orders issued by the Tribunal on 26th April, 2019. The Application is supported by the affidavit of Jane M’Mbaitha sworn on 27th January, 2021.

15. In opposition to the application, the Landlord has filed a Replying Affidavit sworn by Kantilal L. Dodhia on 22nd February, 2021. He deposed that the Applicant/Tenant has defaulted in payment of rent and has arrears of Kshs. 751,500. 00 as at February 2021. The Respondent/Landlord avers that there were several notices issued to the Applicant/Tenant and that the last attachment was done vide court orders issued in the Chief Magistrates Court in Misc. E2646 of 2020 and that a ruling was issued on 1st February, 2021 by Hon. Lewa SRM.

MATTERS NOT IN DISPUTE

16. There is no dispute that there was a Tenant and Landlord relationship governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya. (Controlled Tenancy) and

LIST OF ISSUE FOR DETERMINATION

17. The parties raised certain issues for determination in their submissions and the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below:

a) Whether or not the Tenant/Applicant is deserving of the injunctive orders sought?

ANALYSIS AND FINDINGS

Whether or not the Tenant/Applicant is deserving of the injunctive orders sought?

18. It is trite law that injunctive orders are equitable reliefs that are granted at the discretion of a court. Such orders are issued whenever there is a harm likely to be suffered before the issues in dispute have been resolved.

19. The principles upon which an interlocutory injunction may be granted are set out by the Court of Appeal in Giella v Cassman Brown whereby the court has had to consider the following questions before granting relief:

i. is there a prima facie case.

ii. does the applicant stand to suffer irreparable harm?

iii. on which side does the balance of convenience lie?

Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The court in responding to prayers of interlocutory relief should always opt for the lower rather than the higher risk of injustice.

21. In Mrao Ltd vs First American Bank of Kenya (2003) KLR 125, it was held that a prima facie case is “one 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 from the latter.”

22. It is not in dispute that there is a pending case before this Tribunal in relation to the determination of the rent owed by the Tenant/Applicant in Tribunal Case No. 259 of 2018 which has been subject to delays in setting down the matter for hearing. One of the general principles of granting an injunction is that it is better to safeguard and maintain the status quo than to let the status quo be interrupted by failing to grant an injunction and thereafter once the matter has been concluded, it is found that a greater injustice has been occasioned.

23. It is based on the foregoing that I find that it is only fair and reasonable to make orders to maintain the status quo for the matter to be heard and determined. In any event in consideration of the balance of convenience, the Applicant/Tenant is still in possession of the suit premises and pursuant to the Orders issued on 26th April, 2019 they are to have unlimited access and quiet enjoyment of the suit premises.

ORDERS

For the reasons given above I ORDER as follows that:

a) An injunction is hereby issued restraining the Respondent/Landlord, jointly and severally by themselves and/or through its agents, servants and employees or otherwise from proclamation, attachment and/or sale of the Applicant’s tools of trade pending the hearing and determination of BPRT No. 259 of 2018.

b) Parties to fix the reference for hearing in 60 days’ failure to which the reference stands dismissed and any consequential orders therefrom stands vacated.

c) Each party to bear their own costs.

DATED AT NAIROBI THIS 21ST DAY OF MAY,2021

HON. MUMA ANDREW

VICE CHAIMAN

Ruling dated, signed and delivered this 21st day of May 2021 by Hon Cyprian Mugambi Nguthari this 21st May 2021 in the presence of Hassan for the Tenant and in the absence of Mulkan for the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL