[2022] KEBPRT 222 (KLR)

Kimani & 2 others v Njenga (Tribunal Case E011 of 2021) [2022] KEBPRT 222 (KLR) (Civ) (27 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 222 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E011 of 2021

Gakuhi Chege, Vice Chair

May 27, 2022

Between

Evanson Kagwima Kimani

1st Applicant

Charles Njau Ngigi

2nd Applicant

John Kamau Njuguna t/a The Sunset Place

3rd Applicant

and

Daniel Waruhiu Njenga

Respondent

Ruling

1. The tenants moved this tribunal vide a reference dated November 30, 2021 filed pursuant to section 12(4) of Cap 301, Laws of Kenya complaining that the landlord had started altering the terms of the tenancy unlawfully by constructing other buildings outside the sitting space of the leased premises with a view of setting up business similar to that of the tenants and leasing it to another party.

2. The tenants further complain that the landlord has interfered with their peaceful occupation and enjoyment of the leased premises by constructing buildings outside the sitting area serving their business without issuing a legal notice as required by law.

3. The tenants simultaneously filed a motion dated November 30, 2021 supported by the affidavit of John Kamau Njuguna seeking restraining orders against the landlord from harassing, intimidating and/or otherwise interfering with their quiet possession pending hearing and determination of the application and the reference herein.

4. They further seek restraining orders by way of temporary injunction against the landlord from constructing or establishing another bar and restaurant on the subject property pending hearing and determination of the application and reference.

5. Finally, they seek for a declaration that their tenancy is a controlled tenancy and for an order allowing them to deposit rent in the tribunal pending hearing and determination of the reference and application together with costs.

6. The relationship between the parties herein started sometimes in November 2020 when the landlord leased to the tenants his property known as L R No Ndeiya/Makutano/1862 under cap 301, Laws of Kenya to run a bar, butchery and restaurant together with other facilities serving as outdoor sitting and parking area. The tenancy agreement was not reduced into writing.

7. The tenants upon taking possession of alleged vacant and barely developed premises commenced construction of a bar and two butcheries/kitchens on a portion of the premises in terms of photographs marked as annexure ‘JKN-1’.

8. It is deposed that the parties agreed that the tenants construct a grill perimeter wall on the frontage of the premises and mount gates at the entrance and recover the resultant costs from rent but the landlord ignored or refused the said arrangement.

9. The tenants depose that they had no rent arrears and that they had heavily invested in the premises as a result of which three other persons were attracted to start butcheries, kitchen and a car wash business. The respondent had also constructed a motel on the premises.

10. The respondent is accused of harassing, intimidating, threatening and/or interfering with the tenant’s occupation of the suit premises and caused interruption of their business. The respondent had initiated construction of another building on part of the sitting area with an intention of establishing another bar and restaurant to the tenant’s detriment as evidenced by annextures ‘JN2’.

11. The respondent is accused of threatening to evict the tenants from the premises without plausible reason and had introduced other parties to the premises who were harassing them. The water supply to the tenants premises had been disconnected forcing them to buy the commodity from private suppliers which was expensive and unreliable.

12. The tenants further allege that the respondent had threatened to bring down the grill wall erected by them with a view to developing other structures and blocking their business frontage and as such it was in the interest of justice to grant the orders sought.

13. Interim orders were granted on December 3 and 7, 2021 in favour of the tenants pending hearing inter-partes. Among the said orders, the landlord was restrained from constructing or establishing another bar and restaurant on the subject property pending the hearing of the application inter-partes.

14. The application is opposed through a replying affidavit sworn on January 3, 2022 by the landlord wherein it is admitted that he leased structures on L R No Ndeiya/Makutano/1862 to the tenants to operate a bar and restaurant business therein.

15. It is the landlord’s case that he had already constructed the bar as well as the two kitchens leased to the tenants and had erected a perimeter wall across all his parcels of land and the tenants did not help in the said construction.

16. The landlord accuses the tenants of failure to pay 4 months’ rent as at January 2022 contrary to the lease agreement.

17. The landlord depose that he subdivided original title no Ndeiya/Makutano/1633 into three (3) portions in the year 2012 to create titles no Ndeiya/Makutano/1861, 1862 and 1863 as per annextures ‘DWN1-4’.

18. The lease agreement with the tenants relate to structures constructed on L R No Ndeiya/Makutano/1862 and that parcel no 1861 is leased to one Robert Munyui Kimani together with structures constructed thereon as per annexture ‘DWN5’. The landlord on the other hand utilizes parcel no 1863 where he has established lodging.

19. As such, it is the landlord’s case that he cannot be gagged on the use of the other land parcels having only leased the structures on parcel no. 1862 to the tenants/applicants. The landlord deposes that the Constitution of Kenya guarantees economic freedom to him. No prejudice has been demonstrated by the tenants if the landlord was allowed to run a similar business and instead it is the latter who stood to be prejudiced if gagged from leasing his land which was his source of livelihood.

20. The application was ordered to be canvassed by way of written submissions but only the respondent complied. I shall consider the same while addressing the issues for determination.

21. The issues for determination herein are:-a.Whether the tenants are entitled to the reliefs sought in the reference and application.b.Who is liable to pay costs?

22. Section 12(4) of Cap 301, Laws of Kenya provides as follows:-“In addition to any other powers specifically conferred on it by or under this Act, a tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and may make such order thereon as it deems fit”.

23. Both the application and reference herein raise the same complaint against the landlord and I shall proceed to determine them together under the foregoing section.

24. There is no dispute that the tenancy herein being unwritten is a controlled one under section 2(1) of Cap 301, Laws of Kenya.

25. The tenants are seeking an equitable order of injunction against the landlord herein. The principles considered in an application of that nature were long settled in the case of Giella – vs- Cassman Brown & Co Ltd (1973) EA 358 to wit:-i.An applicant must show a prima facie case with a probability of success.ii.An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.iii.When the court is in doubt, it will decide the application on the balance of convenience.

26. A prima facie case was defined in the case of Mrao Ltd – vs- First American Bank of Kenya Ltd & 3 others (2003) eKLR at page 2/4 as follows:-“A prima facie case in a civil application includes but is not limited to a genuine and arguable case”. It is a case 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”.

27. The tenants herein approached this tribunal complaining that the landlord was infringing upon their right by undertaking construction of another building on part of the sitting area with an intention of establishing another bar and restaurant to their detriment as evidenced by annexure ‘JN2’.

28. The tenants further complain that the landlord was harassing, intimidating, threatening and/or interfering with their occupation of the suit premises and was threatening to evict them.

29. All these allegations are denied by the landlord save that the construction was being done on a different parcel of landlord not on L R No Ndeiya/Makutano/1862 leased to the tenants. The landlord deposes that he cannot be gagged from the use of the other land parcels in any manner that he wishes including establishing a similar business as what is carried out by the tenants.

30. I have seen the mutation instrument and the landlord’s title marked annexures ‘DWN1-4” and note that the subdivision of original parcel no Ndeiya/Makutano/1633 took place way back in the year 2012 and the resultant titles no 1861, 1862 and 1863 were issued on December 11, 2015, March 15, 2012 and January 6, 2017 respectively. This means that the process was complete by the time the tenants leased the suit premises in the year 2020.

31. The tenants have pleaded that they leased parcel no 1862 and not all the three (3) land parcels belonging to the landlord. It is therefore inconceivable how they can now stop the landlord from utilizing the other two parcels in the manner he desires under sections 24 and 25 of the Land Registration Act, 2012. I agree with the landlord’s submission that he cannot be gagged by the tenants on the use of his land.

32. It is noted that the tenants did not file any further affidavit to controvert the contents of the landlord’s replying affidavit and as such the depositions made therein are believable to the court including the fact that the developments made in the suit premises were made by him and not the tenants.

33. It is also noted that the tenants have not elaborated how the landlord has been harassing or threatening them with eviction as no evidence has been exhibited and I am not convinced that the tenants have brought themselves within the principles laid down in the in the Giella case (supra).

34. In the premises, the reference and complaint filed herein by the tenants has no merit and is a candidate for dismissal.

35. In regard to costs, the same are in the discretion of the court but always follow the event unless for good reasons otherwise ordered, I shall award costs to the landlord as I have no reasons to order otherwise.

36. In conclusion, the orders that commend to me are:-i.The application dated November 30, 2021 and the reference of even date is dismissed with costs.ii.The interim orders given on December 3, 2021 and December 7, 2021 are hereby discharged/vacated forthwith.iii.The landlord is awarded Kshs 20,000/- towards costs against the tenants.

It is so ordered.RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Murimi holding brief for Kimani for applicantsNo appearance by the landlord/respondent