[2021] KEBPRT 356 (KLR)
The tribunal found that the applicant satisfied the test for grant of an interlocutory injunction as set out in Giella v Cassman Brown & Co. Ltd. The respondent's allegations of breach by the applicant were unsupported by evidence from other tenants or law enforcement authorities. The premises were the applicant's...
Source-derived case information.
- Citation
- [2021] KEBPRT 356 (KLR)
- Parties
- Applicant: Joseph Mrema; Respondent: Olivejoy Care Estate & Property (Ltd)
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E030 of 2017
- Procedural Posture
- Miscellaneous Application / Interlocutory Application for Injunction Pending Hearing of Main Reference
- Outcome
- Interlocutory injunction granted in favor of the applicant; costs awarded to the applicant.
- Legal Topics
- Controlled Tenancy, Termination of Tenancy, Injunctive Relief, Quiet Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mrema
Applicant
Olivejoy Care Estate & Property (Ltd)
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Application for Injunction Pending Hearing of Main Reference
Legal Issues
- 1 Whether the applicant is entitled to restraining orders against the respondent from interfering with quiet possession or evicting him from the premises.
- 2 Whether the notice to terminate tenancy issued by the respondent was compliant with the law and tenancy agreement.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The tribunal found that the applicant satisfied the test for grant of an interlocutory injunction as set out in Giella v Cassman Brown & Co. Ltd. The respondent's allegations of breach by the applicant were unsupported by evidence from other tenants or law enforcement authorities. The premises were the applicant's main source of income, and eviction would deny him a livelihood, which could not be compensated by monetary damages. The balance of convenience favored maintaining the status quo. Consequently, the tribunal granted the restraining orders sought by the applicant and awarded costs in his favor.
Court Disposition
Interlocutory injunction granted in favor of the applicant; costs awarded to the applicant.
Orders
- Prayers 3 & 4 of the application dated 15th April 2021 are granted, restraining the respondent from interfering with the applicant's quiet possession or evicting him from the premises.
- Costs of the application awarded to the applicant.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E030 OF 2017 (NAIROBI)
JOSEPH MREMA...........................................................................................TENANT/APPLICANT
VERSUS
OLIVEJOY CARE ESTATE &PROPERTY (LTD).......................... LANDLORD/RESPONDENT
RULING
1. By a motion dated 10th March 2021, the Tenant/Applicant has approached this Tribunal seeking in material part for restraining orders against the Respondent from interfering with the Tenant/Applicant’s quiet possession and/or from evicting him from all that property known as unit no. 5 on plot no. 209/6911, Woodley, Nairobi.
2. The matter came up for ex-parte hearing on 22/4/2021 when it was ordered that the status quo in the suit premises shall be maintained by both parties.
3. The application is supported by the Applicant’s affidavit sworn on 15th April 2021 in which it is deposed that the Landlord served a 60 day notice dated 25th March 2021 which was contrary to sections 4 and 7 of Cap. 301, Laws of Kenya.
4. According to the Applicant, the reasons given in the notice dated 25/3/2021 are not contemplated under section 7 of Cap. 301, Laws of Kenya and further offend the tenancy agreement entered into with the Landlord.
5. In fear that he would be forcefully evicted from the suit premises which was his main source of livelihood, the Applicant moved to this Tribunal to seek protection.
6. The Applicant contends that he stands to suffer irreparable, immeasurable and unmerited loss, damage and financial hardship and embarrassment if the unlawful eviction proceeds.
7. Through a replying affidavit sworn on 17th May 2021, the Respondent opposes the said application and supports the notice to terminate tenancy dated 31/3/2021.
8. The Respondent accuses the Applicant of turning the business premises as a venue for holding social gatherings where alcohol is consumed into late hours of the night.
9. According to the Respondent, the Applicant has been warned of the behaviour as it was creating disturbance and interfering with other tenant’s peaceful occupation of the business premises as per annexture BK1.
10. A notice to terminate dated 6th March 2021 marked BK2 was issued to the tenant which was challenged in Tribunal case no. 234 of 2021 for being non compliant.
11. It is deposed that a fresh notice was issued under section 4(2) of Cap. 301, Laws of Kenya on account of substantial breaches of the tenant’s obligations under the tenancy which the tenant is alleged not to have rebutted.
12. A CCTV footage marked BK4 though indicated to have been annexed by the Respondent has not been filed herein.
13. Having analysed the evidence presented before me, I am now called upon to determine whether to grant the orders sought in the application. I am also supposed to decide who is liable to pay costs of the application.
14. I have considered the application and I am satisfied that the tenant has satisfied the test laid down in the case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358.
15. I say so because the issues complained of by the Landlord in the letters and notice of termination of tenancy are not backed by evidence from other Tenants occupying the suit premises or other law enforcement authorities.
16. Secondly, there is no dispute that the premises are the main source of income for the Tenant and his eviction in the pendency of this matter shall no doubt deny him a livelihood. I do not think that denial of a livelihood can be atoned by any measure of monetary compensation.
17. Even if I was in doubt about the two parameters, the balance of convenience dictates that I maintain the status quo obtaining in the demised premises.
18. Having found as above, I make the following orders”-
(a) Prayers 3 & 4 of the application dated 15th April 2021 are hereby granted.
(b) Costs of the application awarded to the Applicant.
(c) Matter shall be fixed for hearing of the main Reference upon parties exchanging witnesses statements and documents in the support of their respective cases.
It is so ordered.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 19TH DAY OF AUGUST 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the absence of parties.