[2021] KEBPRT 283 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 583 OF 2020 (NAIROBI)

JOSEPH HILARY MWANGI............................................LANDLORD/APPLICANT

VERSUS

JANE WAMBUI NJAU.........................................................TENANT/RESPONDENT

RULING

Parties and Their Representative

1. The Landlord/Applicant, Joseph Hilary Mwangi is the owner of Plot No. 1 Kenol, Muranga (hereinafter referred to as the “Landlord”)

2. Learned Counsel Dola, Magani & Co. Advocates represent the Landlord.

(Email: dolamaganiadvocates@gmail.com)

3. The Respondent Jane Wambui Njau rented shop space on the suit premises. (hereinafter referred to as the “Tenant”)

4. Learned Counsel Omwayo, Momanyi, Gichuki & Co. Advocates represent the Tenant.

The Dispute Background

5. On 9th June, 2020 the Landlord moved this court under a certificate for orders seeking the eviction of the Tenant from the suit premises and the recovery of rent arrears.

6. On 11th June 2020the Court gave orders for the Tenant to be served with the application and issued a hearing date of 1st July 2020.

7. On 23rd February 2021 the Landlord filed a further affidavit where he provided that the Tenant’s rent arrears are amounting to KShs. 160,000. 00 as at February 2021, that the Tenant closed the suit premises with a padlock in the November 2020and that the Court issue a further Order of break in.

8. On 9th March 2021the Court issued Orders for the Tenant to clear all rent arrears in respect of the suit premises and 14 days to reply to the Landlord’s application.

9. On 24th March the Tenant filed a replying affidavit denying the Landlord’s claims and further pointed out that there is a case pending, Tribunal case No.12 of 2019between the parties over the same cause of action.

10. On 10th May 2021 the Court gave directions that the Application dated 9th June 2020 to be heard by way of written submissions. The submissions filing was confirmed on 22nd July 2021 and the matter set for ruling on 10th September 2021.

11. The Applications therefore coming for ruling are the Landlord’s application dated 9th June 2020.

Jurisdiction

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

The Dispute Background

13. On 6th March 2020 the Landlord filed a Notice of Termination of Tenancy in respect of the suit premises on the grounds that the Tenant had not paid rent for 5 months amounting to Kshs 50,000,00.

14. On 9th June 2020 the Landlord filed an application in the Court seeking eviction Orders against the Tenant and payment of rent arrears. On 23 February 2021 the Landlord filed a further affidavit where he provided that the Tenant’s rent arrears are amounting to Kshs. 160,000. 00 as at February 2021, that the Tenant closed the suite premises with a padlock in the November 2020 and that the Court issue a further Order of break in.

15. It is the Tenants claim through the Affidavit dated 24th March 2021 that she was never served with the termination notice and that she has cleared all the rent arrears.

The Claim and Defence

16. The Landlord’s case is that on the Tenant has lost all interest in operating her business at the suit premises as she locked the suit premises on November 2020 and currently resides in Eldoret and has equally neglected to pay the outstanding rent arrears.

17. The Tenant’s case is that she was not served with the Notice of Termination of Tenancy and that she has cleared the rent arrears.

Matters Not in Dispute

18. 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).

List of Issue for Determination

19. 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 the Tenant was issued with a Termination Notice?

b) Whether the Court is functus officio with regards to case no. 12 0f 2019?

c) Whether or not the Landlord is entitled to the orders sought?

Analysis and Findings

Whether or not the Tenant was issued with a Termination Notice?

20. Termination of a controlled tenancy is provided for under section 4 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act. The Section provides that; “Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the provisions of this Act”

21. Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act further provides that, “A landlord who wished to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that to the tenant in the prescribed form.”

22. On 6th March 2020 the Landlord issued a Notice to Terminate the Tenancy on the grounds that the Tenant had defaulted in paying rent. Section 7(1)(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides that one of the grounds on which a Landlord may seek to terminate tenancy is where, “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.” From the Notice issued by the Landlord he states that the Tenant has not been paying rent for a period of 5 months.

23. Section 4(6) Landlord and Tenant (Shops, Hotels and Catering Establishment) Act provides that, “A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case maybe.”

24. The Tenant claims that she was not served with the said notice despite the fact that she acknowledged receipt on the notice by appending her signature. Furthermore, there is an Affidavit of service sworn by Moses O. Rumber Ojwang which clearly gives an account on the same.

25. It should be noted that the Tenant has not adduced any evidence before this Court to prove that she was not served. To that extent this Court finds that the Tenant was properly served with the Notice to Terminate the tenancy. The Tenant did not make efforts to challenge the Notice to Terminate the Tenancy as provided for in the Act. Section 10 of the Act which provides, “Where a landlord has served a notice in accordance with the requirements of Section 4 of this Act, on a tenant, and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice, or refer the matter to a Tribunal then subject to Section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy…”Accordingly this Court finds for all intended purposes that the tenancy is terminated

Whether the Court is functus officio with regard to Case no. 12 0f 2019?

26. It is the Landlord’s submission that the case no. 12 of 2019 was dismissed by an Order of this Court dated 28th October 2019 and that the doctrine of functus officio bars this Court from varying its decision.

27. The doctrine of functus officio was expounded by the Supreme Court of Kenya in Election Petitions Nos. 3, 4 & 5 Raila Odinga & Others vs IEBC & Others [2013] eklrwhere the Court cited an article by Daniel Malan Pretorius in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 112 SALJ 832:

“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

28. The Supreme Court also relied on the case of Jersey Evening Post Limited vs Al Thani [2002] JLR 542 at 550to the effect that: “A court is funtus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”

29. Similarly, in our case this Court gave orders with regard to Case no. 12 of 2019 dismissing the reference and the decision of this Court in regards to that matter is final.

Whether or not the Landlord is entitled to the orders sought?

30. On 9th March 2021 this court made orders compelling the Tenant to clear all rent in areas with respect to the suit premises.

31. From the Landlord’s submission dated 25th May 2021 it is clear that despite the orders given by this Court the Tenant did not make any effort to clear the outstanding rent arrear. Furthermore, the Tenant has failed to comply with the directions of this court on several occasion as up to date she has not filed her submissions.

32. It is also clear from the Landlord’s affidavit dated 18th January 2021 that the Tenant has since abandoned the suit premises and shows no interest in carrying out her business in the premises.

33. The orders sought by the Landlord are equitable remedies and I am guided by the decision in Kyangaro v. Kenya Commercial Bank ltd & another [2004] 1KLR126as cited in Patrick Waweru Mwangi & Another v Housing Finance Co. of Kenya Ltd [2013] eKLRat page 145 where the Court stated;

“Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he has not done equity.”

34. Furthermore, as to the injunctive orders sought by the Landlord this Court is guided by the principles in Giella vs Cassman Brown and Co. Ltdwhere the Court set out the principles for interlocutory injunctions.

“The conditions for the grant of an interlocutory are now, I think well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury in which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

35. I find that the Landlord has established the threshold set out in the above case to warrant this Court to grant him injunctive orders.

ORDERS

For the reasons given above I order as follows that:

a) The upshot is that the Landlord’s Application dated 9th June 2020 and the Reference dated 10th June 2020 are upheld. The Notice dated 6th March 2020 is valid.

b) Tenant to vacate within 60 days failure to which the Landlord can reclaim the suit premises through break in with the assistance of the Officer Commanding Station Kenol.

c) No orders as to costs.

HON. ANDREW MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING dated, signed and delivered virtually by Hon A. Muma this 10th September 2021in the presence of Ms Muchemi for Mogani for the Landlord/Applicant andNyabetifor the Tenant.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL