[2021] KEBPRT 433 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 151 OF 2021 (NAIROBI)

JOSEPH WAFULA WANYONYI....................................................................TENANT

VERSUS

GLADYS NJERI MAINA..................................................................1ST LANDLADY

DAVID NDUNGU WAWERU.......................................................... 2ND LANDLORD

JUDGMENT

1. This is a Reference by the Tenant dated 12th February 2021 in which he complains that the Landlord unlawfully distressed for rent arrears and intended to evict him from the business premises without due process.

2. The Tenant simultaneously filed a motion dated 12th February 2021 for restraining orders against the Respondent demised premises pending determination of the suit.

3. On 22nd April 2021, it was agreed by consent of both counsels that the parties shall rely on the affidavits and documents already filed as evidence together with submissions without the need for oral evidence.

4. Both counsels filed submissions in support of the respective cases of their clients.

5. In his supporting affidavit filed in court on 15th February 2021, the Tenant deposes that he has been the Respondent’s tenant in the demised premises paying a monthly rent of Kshs.50,000/- until covid-19 happened rendering him in capable of paying rent as agreed.

6. The Tenant alleges that the initial rent for the demised premises was Kshs.25,000/- per month but the Landlord coerced him to enter into a tenancy agreement that was not viable as he was thereafter required to pay Kshs.50,000/- per month.

7. The Tenant prays that rent be reduced to Kshs.25,000/- per month and that the Landlord be stopped from demanding Kshs.720,000/- per year as it was not in the agreement.

8. The Tenant deposes that he paid rent for the whole of year 2020 but did not do business owing to Covid -19 pandemic and as such the rent should be pushed to this year.

9. The tenant contends that his tools of trade have been proclaimed with the sole intention of eviction by the Landlord.

10. He states that he has heavily invested in the suit premises and that the Landlord should be restrained from his illegal activities aimed at eviction.

11. The 1st Respondent in a replying affidavit sworn on 2nd March 2021 opposes the complaint/Reference stating that the Tenant served a fake order allegedly issued in BPRT NO. 137 of 2021 which after perusal of the court file was found to relate to other people. This was mischievous and criminal according to the Respondents.

12. The Respondents contend that they entered into a lease agreement marked GN3 on 3rd February 2020 with the Tenant/Applicant for a term of 2 years one month effective on 1st December 2019 to 31st December 2021 with a stipulated rent of Kshs.50,000/- for the following 12 months and Kshs.55,000/- for the following 12 months both payable one (1) year in advance.

13. The Tenant was to pay Kshs. 100,000/- deposit by 1st April 2020 which would be enhanced to Kshs.110,000/- on 1st January 2021.

14. The Tenant paid one (1) year rent in the sum of Kshs.600,000/- on 28/11/2019 but failed to pay the agreed deposit of Kshs.100,000/-.

15. The Landlords/Respondents therefore deny that rent was at any one time agreed at Kshs.25,000/-.

16. It is the Respondents’ case that the Tenant failed to pay the agreed annual rent of Kshs.660,000/- nor the enhanced deposit of Kshs.110,000/- making the amount due to be Kshs.770,000/-.

17. The Respondents have denied threatening the Tenant with eviction or threatening him with distress for rent despite his written commitment to pay the rent owing by 15th February 2021 vide annexure GN5.

18. The respondents contend that the court cannot rewrite the contract for parties and the Tenant is only entitled to quiet possession on condition that he paid rent and observed all the terms of the contract.

19. I have looked at the submissions filed by both parties as well as the pleadings and concluded that the main issue for determination is whether the Tenant is entitled to the reliefs sought in the Reference and the application.

20. Having considered the matter in its totality, I find that the relationship between the two (2) parties was reduced in writing vide a lease agreement dated 3rd February 2020 whose terms are very clear.

21. The duty of this court is to interpret and enforce agreements made by both parties and not make new or rewrite the contract.

22. In this regard, I wish to rely on the decision in the case of DR. KOISAGATTEA ESTATE LTD -VS- ERITREA ORTHODOX TWEHDO CHURCH LTD (2015) EKLR at page 8/13 where it was held as follows:

“ In NATIONAL BANK (K) LTD -VS- PIPE PLASTIC SARKOLIT (K) LTD & ANOTHER C.A 95/99, the Court of Appeal made it clear that a Court of law cannot rewrite a contract between the parties as the parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded”

23. Although the Tenant/applicant deposed that he was coerced into entering intot he lease agreement, no evidence was tendered to support the allegation.

24. It is imperative to note that the Tenant paid Kshs.600,000/- pursuant to the said agreement by way of Transfer of Funds as demonstrated by Respondents’ annexure GN4. Secondly, the lease agreements witnessed by an advocate of the High Court and signed by all the parties.

25. I find and hold that the lease agreement was entered into voluntarily and is binding upon both parties.

26. I further find that the Tenant has failed to prove on a balance of probabilities that the rent for demised premises was at any one time Kshs.25,000/- as no such evidence has been adduced.

27. No evidence was adduced of any intention to evict or levy distress against the Tenant to warrant an order for injunction.

28. I find and hold that the Tenant has an obligation to pay rent in order to enjoy a peaceful and quiet occupation of the demised premises. No protection can be offered by a court of equity where it is proved that the Tenant is in breach of such a cardinal obligation.

29. I therefore find that the Tenant has failed to bring himself within the principles espoused in the celebrated case of GIELLA – VS- CASSMAN BROWN LTD (1973) EA 358 and developed over the years by our courts.

30. To avoid a multiplicity of litigation and in exercise of powers bestowed upon this court by Section 12 of Cap 301, Laws of Kenya, I direct the Tenant to pay the outstanding rent and agreed enhanced deposit totaling to Kshs.770,000/- within the next THIRTY (30) days hereof failing which the Landlords/Respondent shall be at liberty to levy distress and/or use other recovery measures against the Tenant.

31. The Tenant shall pay costs of these proceedings assessed at Kshs.25,000/-.

It is so ordered.

Ruling Dated, signed & delivered this 18THday of JUNE2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mrs S.N. Nganga for the Landlord

Mr. Kanyoro holding brief for Amutala for Tenant