[2021] KEBPRT 373 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 1246 OF 2019

DR. KAMAMIA MURICHU T/AMURANG’A INSTITUTE OF SCIENCE AND

MANAGEMENT STUDIES…………….…..……………..…..TENANT/APPLICANT

-VERSUS-

THE BOARD OF TRUSTEES

ACK DIOCESE OF MT. KENYA CENTRAL…..…1ST RESPONDENT/LANDLORD

THE DIOCESAN BISHOP

ACK DIOCESE OF MT. KENYA CENTRAL..….....2ND RESPONDENT/LANDLORD

THE ADMINISTRATIVE SECRETARY

ACK DIOCESE OF MT. KENYA CENTRAL…..…3RD RESPONDENT/LANDLORD

RULING

PARTIES AND THEIR REPRESENTATIVE

1. The TenantDr. Kamamia Murichu T/A Murang’a Institute of Science and Management Studies(hereinafter referred to as the “Tenant”) rented a premise plot number: No. BK. 11/87 Murang’a.

2. The Firm of Ngeri Omiti & Bush Advocates LLP represent the Tenant.

(Email Address: dr@nobadvocates.co.ke)

3. The Respondents the Board of Trustees ACK Diocese of Mt. Kenya Central, The Diocesan Bishop ACK Diocese of Mt. Kenya Central, The Administrative Secretary ACK Diocese of Mt. Kenya Central are the Landlords of the suit premises rented out to the Tenant.

4. The Firm of Macharia wa Muturi & Co. Advocates represent the Landlord.

(Email Address: mm@machariaadvocates.com)

THE BACKGROUND OF THE DISPUTE

5. The dispute arises from a tenancy Agreement entered into on 1st December, 2017 in respect of plot number: No. BK. 11/87 Murang’a. through which the Tenant took possession of the premises for purposes of operating and running a college known as Murang’a Institute of Science Management Studies.

6. The Tenant filed a Reference and an Application dated 4th December 2019 under Certificate of Urgency seeking orders the following orders;

I. That the Application be certified urgent, service thereof be dispensed with in the first instance and the Application be heard expert for purposes of prayer I, II, and V.

II. That the Honourable Tribunal be pleased to issue an order directing the Respondents, their Agents, servants or anybody acting through them to reopen the Applicant’s premises.

III. That the Honourable Tribunal be pleased to issue an order restraining the Respondents, their Agents, servants and/or anybody acting through them from harassing, intimidating, threatening, evicting or closing the premises and in any way interfering with the Tenant’s quiet possession until hearing and determination of the Application.

IV. That this Honourable Tribunal do issue restraining orders against the Respondent or anybody acting on their behalf from evicting and/or interfering with the Tenant/Applicant from the suit premises or interfering with the Tenant’s exclusive and quiet possession of the suit property.

V. That this Honourable Tribunal be pleased to issue an order directing the Officer Commanding Station(OCS) Murang’a East Police Station and/or officers acting under his command to supervise the enforcement of order 2 above.

7. The Respondents replied to the Application through an Affidavit of Samuel Kuria Karabu dated 4th March, 2020.

SUMMARY OF PROCEEDINGS

8. On 4th December 2019, the Tenant filed a Reference and an Application dated 4th December 2019 moving this Honorable Tribunal under a Certificate for orders hereinabove listed.

9. The Tribunal on 5th December 2019 granted orders dated 5th December 2019as prayed at prayers I, II, III,andV above. Hearing of the suit was on 7th January 2020. The same did not take off until 14th April 2021 after several adjournments. The Honourable Tribunal ordered parties to file their submissions within 28 days, 14 days each. With a mention for compliance on 25th May 2021 and 9th June 2021, all the parties confirmed to have complied and filed their submissions. The tribunal set a ruling date to 16th July 2021.

JURISDICTION

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

ISSUES FOR DETERMINATION

I.Whether the Applicant/Tenant is entitled to the reliefs sought in the Notice of Motion Dated 4thDecember 2019

II. Whether it is in the interest of justice to issue the Orders sought by the Tenant.

APPLICANT/TENANT’S SUBMISSIONS

19. The Tenant/Applicant filed their submissions dated 24th May 2021 in respect to their Application dated 4th December 2021 and a Further Affidavit dated 12th May 2021. The Applicants submitted that the instant suit resulted from a dispute regarding the tabulation of rent arrears between the Landlord and the Tenant. As at 18th November 2019, the Landlord claimed that the total outstanding arrears were Ksh. 623,874. 00. in opposition to the claim, the Tenant submitted that the rent arrears were Ksh. 270,000. 00 which he paid by issuance of cheques to the Landlord as demonstrated in the Tenant’s supporting Affidavit and a Further Affidavit. In the Further Affidavit, the Tenant contended that arrears alleged by the Landlord was for payment of rent on a quarterly basis, contrary to the Tenancy Agreement which provided for a rent payment on a monthly basis being Ksh. 137,478. 00.

20. One of the Cheques issued by the Tenant was dishonored by the Bank. The Tenant submitted that, it was as a result of unfortunate circumstances as the cheque was deposited on 23rd November 2019 when other payments had already been disbursed hence why the cheque was returned unpaid and the Landlord refused to bank them and returned the cheques to the Tenant. The Tenant submitted that he made efforts to make good the dishonored cheques, which led to the purported illegal actions of the Landlord to lock up the premises. The Tenant averred that he has always paid rent through cheques and there was no history of cheques being dishonored or returned unpaid save for the one instance which the Tenant claims to have explained to the Landlord.

21. The Tenant relied on section 4(1) of the distress for rent Act cap 293, Laws of Kenya to argue that he was entitled to have quiet possession of the premises. The section states as follows;

4(1) Where any goods or chattels are distrained for rent reserved and due upon a grant, demise, lease or contract, and the Tenant or owner of the goods or chattels so distrained does not, within fourteen days after distress has been made, and notice thereof (stating the cause of the making of the distress) left on the premises charged with the rent distrained for, pay the rent together with the costs of the distress, or replevy them, with sufficient security to be given to the licensed auctioneer according to law, the person distraining may lawfully sell on the premises or remove and sell the goods and chattels so distrained for the best price which can be obtained for them, towards satisfaction of the rent for which they are distrained, and of the charges of the distress, removal and sale, handing over the surplus (if any) to the owner.

LANDLORDS’/RESPONDENTS’ SUBMISSIONS

22. The Respondents filed their Submissions dated 8th June 2021 in respect to their Replying Affidavit dated 4th March 2020. The respondents submitted the Application by the Tenants was brought in bad faith because the Tenant had violated the terms of the Tenancy Agreement that established their relationship. For that reason, the Respondents asked the Tribunal to disallow the reliefs sought by the Applicant. Respondents agreed that the Lease Agreement stipulated that the Tenant would pay monthly rent for Ksh. 137,478. 00. They submitted that the Tenant had failed to meet the obligation as per the express terms of the lease agreement. Consequently, they averred that the Applicants were unclean before the Court of equity and therefore its prayers should be disallowed.

23. The Respondents submitted that their tabulation was accurate and not based on quarterly basis as alleged by the Applicants. They submitted that on 18th November 2019, they wrote a letter to the Applicant specifying that he was in arrears of four months and half month preceding the letter. They submitted that they lost trust in the Applicant because of his previous conduct and default in payment of rent and from the fact that one of the Cheques amounting Ksh. 67,500. 00 had been dishonoured by the Bank. They therefore became apprehensive to decline receipt of further cheques issued by the Applicant. They further refer to the Applicant’s Further Affidavit where the Applicant stated that he has been able to pay rent until the National Government issued a directive to the effect that all learning institutions be closed due to the Covid 19 pandemic. The Respondents submitted that the terms of the lease do not provide for payment of rent on condition of continuance learning. In response to the Applicant’s prayers they relied on the case of Giella vs. Cassman Crown & Co. LTD and Kenya Commercial Finance Co. Ltd vs. Education Society (2001) EA 86,87.

ANALYSIS AND DETERMINATION

24. I have carefully considered the submissions of the parties together with all the documents filed in this Tribunal for consideration. Existence of a tenancy agreement between the parties is not in dispute. Having carefully considered the submissions, I have come to the following analysis and determination on the issues in dispute.

I. Whether the Applicant/Tenant is entitled to the reliefs sought in the Notice of Motion Dated 4th December 2019

25. After a thorough scrutiny of the parties’ submissions and evidence, I am guided by the principles set in various case laws to make my determinations on the case at hand. I have considered the principles set in in Giella Vs Cassman Brown and Co.Ltd[2]where the Court set out the principles for Interlocutory Injunctions.

“The conditions for the grant of an interlocutory injunction 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 which would not adequately be compensated by an award of damages. Thirdly, if the Honourable Tribunal is in doubt, it will decide an Application on the balance of convenience.”

26. On whether the Tenant has a prima facie case with probability of success, I further rely on the case of Mrao versus First American Bank of Kenya Limited & 2 Others (2003) KLR 125, a prima facie case was described as follows:

“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the Honourable Tribunal, 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 this case, the Tenant makes several admissions that he was in arrears in 2019 and provides proof via his statement of account filed in court that he has indeed been paying rent diligently. In addition, it is trite law that where a party is in default for over two months the landlord ought to move this court by way of a reference to seek payment of the rent and or vacant possession of the suit premises this was not done instead the landlord resorted to locking the business contrary to the express provisions of the law.

Based on the material presented to this Tribunal, I am persuaded that the Tenant has met the threshold for injunctive orders sought in the Application, he has shown a prima facie case with probability of success.

II. Whether it is in the interest of justice to issue the Orders sought by the Tenant.

27. The suit property is a learning Institution hosting college students, these are innocent parties who are set to suffer as a result of failure to honour the tenancy agreement by the Applicant. The Tenant submitted that the actions of the Landlords to threaten closure of the premises resulted to closure of the institution at a time when the students were about to sit their exams. The right to education is anchored in Articles 43(1)(f) and Article 53 of the Constitution. Further I am guided by Article 24 of the Constitution which states as follows;

24. (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

a) the nature of the right or fundamental freedom;

b) the importance of the purpose of the limitation;

c) the nature and extent of the limitation;

d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

e)the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

28. I have considered the nature of the business carried out in the premises being an Institute of Science and Management and the point in time when schools were closed down due to Covid 19 pandemic. I have also noted from the exhibits, KM-1, KM-2 (a-k) that the Applicant has made several rent payments in the years 2020 and part of 2021. Further, the Tenant filed a Statement of Account dated 21st July 2021 showing payment of rent which has not been contested by the Landlord. Accordingly, I am satisfied that it serves the interest of justice to grant orders below.

29. I have considered that Parties were asked to file statements of Account on or before 21st July 2021. To date only the Tenant has since filed the same and it only states what he has paid to date.

30. In view of the above, I hereby make the following orders and directions:

i.The Respondent’s, Notice of Motion dated 4th December 2019 is hereby allowed in line of prayer 4 pending hearing and determination of the Tenant’s reference dated 4th December 2019;

ii. The OCS Murang’a East Police Station and/or Officers to maintain peace in the enforcement of the said orders;

iii. The issue of rent arrears to be ventilated at the hearing of the full reference dated 4th December 2019 which should be set down for hearing within 60 days failure to with the same will be marked as settled;

iv. Each party to bear its own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually this 27th July 2021 in the presence of Wangui holding brief for Mr Omiti for the Tenantand in the absence of Machariaon record for the Landlord.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL