[2022] KEBPRT 667 (KLR)

Kinyua & another v Kararaho & 2 others (Tribunal Case E036 of 2021) [2022] KEBPRT 667 (KLR) (Civ) (25 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 667 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E036 of 2021

Gakuhi Chege, Vice Chair

August 25, 2022

Between

John Kimingi Kinyua

1st Applicant

Mike Twoli

2nd Applicant

and

Joseph Kararaho

1st Respondent

Mary Kararaho

2nd Respondent

Jackline Sidi

3rd Respondent

Ruling

1. The tenants/applicants moved this Tribunal vide a reference dated November 16, 2021 under section 12(4) of cap 301, Laws of Kenya complaining that the landlords have received rent up to the months of November 2021 and still claimed arrears which the tenants were not aware of.

2. The tenants simultaneously filed a motion dated November 16, 2021 seeking for restraining orders against the landlords from evicting, harassing, distressing and/or in any way disturbing their peace or quiet enjoyment of the suit premises or from executing the notices dated September 21, 2021and proclamation notice dated November 9, 2021.

3. The application is supported by the joint affidavit of both tenants sworn on 16th November 2021 wherein it is deposed that they were up to date with their rent payments in terms of annexures ‘JKK1’.

4. The tenants received termination notices marked ‘JKK2’ in which the landlords sought to terminate their tenancies with effect from December 1, 2021on grounds that they intend 568,000/- and required the tenants to pay the rent arrears and vacate the premises.

5. Subsequently on November 9, 2021, the tenants were served with proclamation of attachment by Eshikoni Auctioneers seeking to recover unspecified rent arrears. The said notice is marked ‘JKK3’.

6. It is the tenants case that they have no other source of income and solely rely on their said businesses for sustenance. As such it is deposed that the actions of the landlords is founded on malice, bad faith and illegality. The tenants had huge pending debts with their suppliers.

7. It is deposed that the 1st tenant is yet to be paid the amount used to reconstruct the premises after the building was burnt down and was allowed to reconstruct by the Respondents. They had also not been offered alternative remedy on the intended eviction.

8. The application is opposed through a replying affidavit of the 1st respondent sworn on March 1, 2022 wherein it is deposed that the tenants are using these proceedings to forcefully remain in possession of the suit premises. It is the Respondents’ case that the initial tenancy was entered into between the applicants and their deceased mother and that the agreement lapsed upon death of the latter as per certificate of death marked ‘A’. As such the Respondents depose that there is no landlord/tenant relationship with the applicants.

9. However, the 1st respondent served notice to vacate to enable renovation of the suit premises as per proposed plan marked ‘B’ which cannot be done while the tenants remain in occupation of the suit premises. The termination notice is marked as annexure ‘C’. He has annexed photographs marked ‘D’ to support his deposition that the suit premises were uninhabitable hence requiring major structural renovations.

10. The Respondents depose that denying them the opportunity to renovate the premises will greatly prejudice them as the tenants have an opportunity to look for alternative premises.

11. The Respondents maintain that the notice to vacate was in line with the law and there was no legal requirement to give the tenants alternative remedy before eviction and no prejudice will be occasioned upon them if the orders sought are denied.

12. The 1st applicant swore a supplementary affidavit on May 9, 2022 in response to the replying affidavit. It is the tenants’ case that the Respondents have been receiving rent from them.

13. The tenant depose that they are entitled to a refund of goodwill paid as per annexure ‘JKK1’. They maintain that there was confusion as to who was the right landlord.

14. According to the tenants, the proposed renovation plan does not show anything clearly that is meant for the suit premises and neither does the landlords show that they had funds in place for the renovation proposed to be undertaken.

15. The application was directed to be canvassed by way of written submissions and both parties complied. I intend to advert to the submissions while considering the issues for determination.

16. The issues for determination based on the pleadings are:-a.Whether the applicants are entitled to the reliefs sought in the application dated November 16, 2021and the reference of even date.b.Who is liable to pay costs?

17. The instant proceedings were prompted by the landlords’ notice to terminate tenancy dated September 21, 2021 and the proclamation of attachment dated 9th November 2021 served upon the tenants. The notice to terminate was to take effect on December 1, 2021.

18. It is the tenants’ submissions that the notice served upon them was issued on November 9, 2021 which was to take effect from December 1, 2021. As such, the notice is attacked for being invalid since the service was on November 9, 2021.

19. According to the tenants, the landlords have not satisfied the grounds set forth in the notice.

20. It is imperative to note that there is no reference under section 6(1) of cap. 301, Laws of Kenya before me. The term reference is defined under section 2(1) of cap 301 Laws of Kenya to mean “ a reference to a Tribunal under section 6 of the Act. The reference filed herein is under section 12(4) of the Act and is in the nature of a complaint. It does not in any way seek to invalidate the said termination notice. As such all the submissions on the validity of the said notice are misconceived.

21. In the instant case, I am only required to consider whether the applicant have brought themselves within the principles of granting injunctions espoused in the case of Giella v 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.

22. It is the tenants’ case that they were served with notices to terminate tenancy on an undisclosed date and subsequently with proclamation of attachment on November 9, 2021. The tenants have annexed some rent payment receipts to demonstrate that they have been paying rent to the Respondents. The receipts constitute evidence that there exists a landlord/tenant relationship between the parties herein. In any case, there would have been no basis for the 1st Respondent to serve notice of termination of tenancy or to distrain for rent if there was no such relationship.

23. Under section 6(1) of cap 301, a receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of the Act that he does not agree to comply with the tenancy notice may, before the date upon which such notice is to take effect refer the matter to the Tribunal whereupon such notice shall be of no effect until and subject to the determination of the reference by the Tribunal.

24. In absence of a reference to this Tribunal under section 6(1) of cap 301, the applicants cannot be said to have established a prima facie case against the notice of termination of tenancy.

25. It is to be noted that there is no prayer in the complaint and application by the tenant seeking to challenge or declare the distress for rent unlawful or unprocedural. It is therefore not clear how, a prima facie case can be said to exist against the Respondents.

26. Secondly, apart from contending that they have no other source of income and that they solely rely on their said businesses for sustenance, the applicants have not demonstrated what irreparable injury they might suffer if the injunction sought is not granted. I am thus not satisfied that this principle has been satisfied by the applicants.

27. In view of the foregoing findings, I am not satisfied that the applicants have demonstrated that they are entitled to the discretionary remedy of injunction.

28. All the issues submitted on in respect of the termination notices served upon the tenants are not properly before this Tribunal in absence of a reference under section 6(1) of cap 301 and cannot be considered in the instant proceedings.

29. This Tribunal is mandated under section 12(4) of cap 301 to 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.

30. I have looked at the complaint set out in the reference dated November 16, 2021 vis-avis the rent payment receipts exhibited as annexure ‘JKK1’ showing that the tenants have been paying rent into the 1st Respondent’s account at Family Bank and cannot see the basis of the complaint more so in absence of any demand letter for rent from the other Respondents. The complaint is therefore not merited and is a candidate for dismissal.

31. As regards costs, the same are in the Tribunal’s discretion under section 12 (k) of cap 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the Respondents costs of the suit.

32. In conclusion, the following final orders commend to me:-i. The application dated November 16, 2021 and the reference of even date is dismissed with costs to the Respondents.ii. The interim orders given on November 19, 2021 are hereby discharged.iii. The Respondents costs are assessed at Kshs.20,000/- against the tenant.

It is so ordered.RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 25TH DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Miss Khayo for the TenantNo appearance for the Respondents