[2024] KEBPRT 322 (KLR)

Kagwana v Mwangi (Tribunal Case E905 of 2023) [2024] KEBPRT 322 (KLR) (27 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 322 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E905 of 2023

N Wahome, Member

February 27, 2024

Between

Andrew Kagwana

Tenant

and

Mary W Mwangi

Respondent

Ruling

1. By his reference dated 14th September 2023, the Applicant lodged a complaint against the Respondent said to be founded under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, (Cap 301)hereinafter referred to as the Act. The grievances were that:-a.The landlady through the M/S Jogan Dries Auctioneers distrained the Tenants tools of trade on the 29/8/2023,b.That the said distraint by the landlady and her agents, Jagon Dries Auctioneers was not done in the prescribed form as required by the law,c.The landlady and/or through her agent, Jogan Dries auctioneers failed to give notice to the Tenant before the distraint,d.The distrain is unlawful given that the same was not permitted by the Tribunal,e.That the Tenant has no arrears of rent to be distrained by the landlady or her agents.f.The Tenant has promptly and fully paid rent as per the tenancy agreement signed by the landlady and the Tenant,g.The tenant is apprehensive that the landlady and her agent will eventually sell his tools of trade any time as stipulated if the warrant of attachment lapses, and,h.The Tenant has tried to seek audience with the landlady on the matter, however his efforts have been fruitless.

2. With the reference was filed the notice of motion application of even date and brought under certificate of urgency. The same sought for the following reliefs:,a.Spentb.That the landlady/Respondent and/or her agent M/S Jagon Dries Auctioneer be ordered to deliver to the Tenant/Applicant his tools of trade confiscated from his premises pending the hearing and determination of the application inter-partes,c.That the proclamation notice issued by the landlord and/or her agent through Jagon Auctioneers be set aside and/or stayed pending the hearing and determination of this application as the same is irregular,d.That the Honourable Tribunal do issue an injunction order, that the landlady and her agents, Jagon Dries auctioneer be restrained from alienating, selling or interfering or disposing the Tenant tools of trade pending hearing and determination of this reference.e.That this Honourable tribunal do issue an injunction order restraining the Respondent or her agent, he M/S Jagon Dries Auctioneers and/or the Capital Hill Police Station from trespassing, disturbing, re entry-ingress, take over releasing and in any way interfering with the Tenant quiet enjoyment of the demised premises known as extension of House no 166 High View 2 Estate, Mbagathi Road during the subsistence of the Tenancy Agreement.f.That the Honourable Tribunal do issue an order compelling the landlady to reconnect water to the Tenant’s demised premises being extension of House no 166 High View 2 Estate, Mbagathi Road.g.That the cost of this Application be borne by the Landlady.

3. The Applicant was to further file the further affidavit dated 14/1/2023. He also put reliance on his submissions dated 24/1/2024 in which he invoked the following decided cases:-a.Tribunal case no E009 of 2021 Belkon Agencies Ltd v Transline Classic Ltd (2001) eKLR, andb.Giella v Cassman Browncoltd (1973) EA 358,

4. On her part, the Respondent filed the Replying Affidavit sworn on the 9/1/2024 and the submissions dated the 5/2/2024. In support of her case, she also put reliance on the following decided cases,a.National Bank of Kenya Ltd v Pipeplastic Samkolit Ltd and Another (2001) eKLR,b.Daniel Toroitich Arap Moi v Stephen Muriithi (2014) eKLR.c.Giella v Cassman Brown co Ltd (1973) EA 358,d.Samuel Kipkorir Ngeno & Another v Local Authorities person Trust (Registered Trustees) and Another (2013) eKLR.e.Nguruman Ltd v Jan Bonde Nielsen & 2 Others (2014) eKLR.f.John Nthumbi Kamwithi v Asha Akumu Juma (2018) eKLR andg.Julius Mogalla Gellode T/A Esmart Technical college v Ouru Power Ltd and Another (2016) eKLR.

5. Having perused all the materials on record, I would wish to state the case for the Tenant as follows:-a.The landlady had orchestrated the distress on his tools of trade when no rent owed to her.b.The rent claimed by the Respondent had been offset against costs incurred by the Applicant on improvements to the demised premises at a cost of ksh120,000/-.c.The Respondents agents M/S Jagon Driers Auctioneers had not followed due process in attaching his tools of trade as no notice had been issued to him.d.He had dutifully paid rent upto and including the month of October, 2022 and the succeeding nine (9) months were to be catered for by the ksh120,000/- he had used for improvements on the demised premises.e.The improvements on the demised premises were with the consent of the Respondent who even provided the mason one Mr. chege.

6. He therefore sought for the prayers in his application dated 14/9/2023 be granted. On her part, the landlord asserted that the Applicant:,a.Was in arrears of rent for 15 months effective October, 2022 to January, 2024 totalling to ksh195,000/-.b.Though the Tenant had caused improvements on the demised premises, it was without her consent and was therefore not obligated to refund any such expenses or have the same offset against rent payable to her.c.Has been erratic in payment of rent and was rude and did not co-operate with her.

7. She therefore sought to be allowed to proceed with distress for rent if the Applicant did not pay the rent in arrears and that he be ordered to vacate from the demised premises.

8. From the materials placed before this court, it is my view that the issues for determination in this matter are the following,A.Whether the Applicant’s application dated 14/9/2023 is merited.B.Whether the Respondent was entitled to levy distress,C.Who should bear the costs of this application.

9. On the first issue of whether the Applicant’s application dated 14/9/2023 has merit, I would state that the reliefs sought by the Applicant are equitable reliefs. To find merit in the application, the applicant must also prove his case on a balance of probabilities. Section 107 of the Evidence Act provides that:,“whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists”.

10. In the case of William Kabogo Gitau v George Thuo & 2 Others (2010) IKLR, justice Luka Kimaru expounded on the exposition of proof on a balance of probabilities as follows:-“In ordinary civil cases a case may be determined in favour of a party who persuaded the court that the allegations he has pleaded in his case are more likely then not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred”.

11. Further in the case of Kinyungu Njogu v Daniel Kimani Maingi (2000) eKLR the court held that:-“The burden of proof in civil cases on the balance of probability is that when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other”.

12. The applicant made sweeping statements that he had caused improvements on the demised premises but provided no lota of evidence that he had obtained the consent of the Respondent to occasion the same pursuant to the parties Agreement dated 1/1/2022. Clause 11 of the Agreement provided that:-“The Tenant shall not interfere with or alter any part of the signature of the house without prior consent from the Landlord”.

13. The Landlord has denied granting such consent and it was in consent upon the Applicant to provide evidence that the same had been granted. The Applicant also did no present any evidence to demonstrate any purchases made for the improvements or any money paid for labour in execution of the process. In the least, I would have expected the Tenant to have requested for a receipt from the Respondent acknowledging payment of rent for nine (9) months in advance. This did not happen, though there is evidence on record to show that the respondent would issue receipts in acknowledgement of payment of rent in advance by the Applicant in the past.

14. From the above analysis, I am unable to conclude in favour of the Applicant that he obtained the consent of the respondent to cause the subject developments. There is also no evidence offered to show what amount of money was used if at all on the purported improvements to the demised premises. I would therefore determine as persuaded by the evidence on record that the last payment for rent by the Applicant was in October, 2022.

15. It therefore goes without saying that the Applicant has not been able to satisfy the principles for the grant of the relief of injunction as sought. The Locus Classicus case of Giella v Cassman Brown Supra laid down the principles applicable for an Applicant to be successful on a prayer for the equitable relief of injunction. It held that:-“For the court to grant an interlocutory injunction, first an Applicant must show a {{term{refersTo |title In civil cases it is a case 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 or rebuttal from the latter.

In criminal cases it is a case which on full consideration might possibly be thought sufficient to sustain a conviction.} prima facie}} case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly if the court is in doubt, it will decide an application or a balance of convenience”. 16. The Applicant was not able to show that he got the consent of the Respondent to cause the improvements on the demised premises and further that he spent ksh120,000/- on those improvements. The upshot of all that is that the Applicants Application lacks in any merit and is dismissed.

Issue no B- Whether the Respondent is Entitled to Levy Distress. 17. Section 3 of the Distress for Rent Act provides that:,“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrear 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”.

18. In the case of Nthenge v Daniel Humo & Another HCCC no 1242 of 1974 Nairobi, the court held that:-“The right of a landlord to distrain for arrears of rent arises at common law and need not be expressly reserved. It enables the landlord to secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due. Formerly, the right to distress was a right of some importance to the landlord and was often exercised, but it has now largely fallen into disuse”.

19. The right to distress accrues when there is rent in arrears and that right does not require the permission of the court to be exercised. In the case of John Nthumbi Kamwithi the court further held that:-“It follows that the appellant had a right to levy distress for recovery of the rent owed. The issue arising is whether he was required to seek permission from the Business Tribunal….. I have perused the Act but I find that the appellant had no obligation to seek permission from the Tribunal to levy distress”.

20. I therefore make a finding that at the time of the proclamation and attachment of the Applicants goods, he was in rent arrears of between November 2022 and September 2023. both inclusive. That is a total of 11 months at monthly rent of ksh13,000/-. It sums upto ksh143,000/-. I however note that despite the court orders issued on the 20/9/2023 for the release of the Applicants merchandise, the Respondent and/or her agents retained the same against the said court orders until the 13/12/2023 when the same were released to him. It is therefore my view that no rent is payable to the respondent for the dates between the 20/9/2023 and the 13/12/2023 which I round off to three (3) months. Therefore the rents owed o the respondent by the applicant is for between November, 2022 and February, 2024 a total of 16 months. Less the said three (3) months and the total rent payable in arrears is for 13 months at a total of ksh169,000/-.

21. The Respondent was therefore entitled to levy distress and did not need the permission of this court to proceed with that action. The Respondent has in passing sought to have the Applicant ordered to deliver vacant possession of the demised premises. That relief cannot be granted as the Respondent must in the least comply with Section 4 of the Act and Regulation 4(1) of the Regulations thereof. That invitation to grant such reliefs is therefore declined.

Issue no C- Who Should Bear the Costs of this Suit. 22. Though the Applicant has been unable to prove expenditure on improvements of the demised premises or that he had the consent of the Respondent, the later has admitted that some improvements were indeed effected on the demised premises. For that reason and for the initial defiance to obey court orders by the Respondent, I direct that each party will bear own costs.

23. In conclusion I make the following orders.a.That the Application dated 14/9/2023 and the reference thereof of the same date are both dismissed.b.That the Respondent is at liberty to distress for rent at ksh169,000/- to include the month of February 2024. c.That each party, shall bear own costs of this suit.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY 2024. HON. NDEGWA WAHOME MBS,- MEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of :Mr. Odhiambo for the Tenant/ApplicantM/S Maruti for the Landlord/RespondentHON. NDEGWA WAHOME MBS,- MEMBERBUSINESS PREMISES RENT TRIBUNAL27TH FEBRUARY 2024Court:1. Both parties shall be supplied with a certified copy of the Ruling on payment of the requisite fees.2. There shall be a stay of execution for 30 days.HON. NDEGWA WAHOME MBS,- MEMBERBUSINESS PREMISES RENT TRIBUNAL27TH FEBRUARY 2024