[2024] KEBPRT 194 (KLR)

Kiprotich v Christian Foundation Fellowship Kenya Through Pastor Lohi Likunda Injiira (Tribunal Case E064 of 2023) [2024] KEBPRT 194 (KLR) (20 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 194 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E064 of 2023

P Kitur, Member

February 20, 2024

Between

Emmanuel Kiprotich

Landlord

and

Christian Foundation Fellowship Kenya Through Pastor Lohi Likunda Injiira

Tenant

Ruling

A. Parties And Representatives 1. Emmanuel Kiprotich is the Landlord herein and the proprietor of the suit property known as Eldoret Municipality L.R 6482.

2. The Landlord is represented by Mwai Diana Law Advocate.

3. Christian Foundation Fellowship Kenya through Pastor Lohi Likunda Injiira is the Tenant having leased from the Landlord the suit property (hereinafter known as the ‘Tenant’)

4. The firm of M/S Seneti & Oburu Associates Advocates represent the Tenant.

B. The Dispute Background 5. The Landlord Avers that he entered into a three (3) year renewable lease agreement with the Tenants on or about 24th September 2019 over two portions of Land Namely portions B and C which tenancy was to lapse on 22nd September 2022.

6. That on 20th May 2022, he served upon the Tenant a Notice to terminate tenancy for non-payment of rent which the Tenant did not comply with and instead filed a suit vide BPRT/E116 of 2022 to challenge the Notice.

7. The Tribunal, on 24th March 2023 dismissed the Tenants suit and ordered him to pay costs to the Landlord which were assessed at Kshs. 5,000/= to which the Tenant did not comply with.

8. Feeling Aggrieved, the Tenant came before this honourable tribunal and filed a Complaint accompanied by a Notice of Motion Application dated 19th May 2023 seeking the following orders:I.SpentII.That a mandatory temporary injunction be issued restraining the Tenant from further trespassing on the Landlord/Applicants premises known as Eldoret Municipality L.R 6482 pending the hearing and determination of this suit.III.That an eviction order be issued against the Tenant from the Landlords premises known as Eldoret Municipality L.R 6482 pending the hearing and determination of this suit. .

9. The Tenant opposed the Application by filing a Replying Affidavit dated 28th July 2023 stating that the Tenant had been religiously paying rent to the Landlord despite the purported termination of the lease. The tenant contented that the lease agreement could not stand terminated since they are up to date with the rent payments.

List of Issues for Determination 10. The issues raised for determination are as follows;a)Whether there exists a Tenancy relationship?b)Whether the Applicant is entitled to the Orders sought.

Analysis and Findings Whether there exists a Tenancy relationship? 11. The admitted facts are that the Parties got into a three-year tenancy agreement between 24th September 2019 and 22nd September 2022.

12. It was the Landlords deposition that the said lease was terminated vide a notice dated 20th May 2022 which was served upon the Tenant.

13. On the other hand, the Tenant denies being served with the purported notice and equally states that they are up to date on rent payment and therefore their occupation of the property is legal.

14. The Landlord further stated that indeed the Tenant filed a Reference vide BPRT/E116/2022 in contention of the said notice which Application was dismissed with costs.

15. On the first issue as to whether there exists any form of lease agreement between the Parties, it is trite law that contracts can either be express or implied. Express when there is a written agreement while implied when the owner of a premise continues to receive consideration for the demised premises even if there is no written agreement.

16. I wish to rely on Section 60 of the Land Act that provides as follows:(1)If a lessee remains in possession of land without the consent of the lessor after the lease has been terminated or the term of the lease has expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land.(2)A lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired, shall not, by reason of that fact, be deemed to have consented to the lessee remaining in possession of the land, or as having given up on any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease, and if the lessor continues to accept rent from a tenant who remains in possession for two months, after the termination of the lease, a periodic lease from month to month shall be deemed to have come into force.'

17. I rely on the case of James Heather Hayes Vs Africa Medical Research Institute (AMREF) Industrial Court Case No. 626 of 2013 where it was stated that ... ' it is not the duty of the court to redraw the agreement by parties, the court can only come to facilitate an interpretation and implementation of this contract and no more...'

18. In relying on this case, I find that it is indeed not my duty as a Court to redraft the agreement between the Plaintiff and the Defendants which had already terminated, but to interpret as to whether there are contractual obligations arising from their relationship.

19. On the foregoing therefore, it is my considered opinion that the Landlords action of sending a notice to terminate are clear indication that he was not interested in renewing the contract and that the Tenant does not qualify to be a protected Tenant.

20. I wish to reiterate the finding of the Honourable court in Jubilee Insurance Company of Kenya Limited v Joseph Ndugu Karega T/A Leather Touch Foot Care Specialists [2014] eKLR which stated “Having found that the Plaintiff is not a protected tenant, the more than 3-month notice issued to the Defendant to vacate the premises upon expiration of the lease was sufficient. Further, unlike in controlled tenancies, the landlord need not give reasons for issuing notice to terminate or declining to grant extension of a lease period. The Defendant ought to have made arrangements to relocate its business. It was well within the Plaintiff’s right to issue notice of termination upon expiration of the lease and incumbent upon the Defendant to give vacant possession upon expiration pursuant to clause 3’

21. It is therefore my considered view that in the instant suit, the Landlord’s 6-month notice which was sufficient in line with clause four (4) of their agreement was a clear indication that he was not interested in renewing the contract and that therefore the Tenant does not qualify to be a protected Tenant.

22. On the second issue, whether the Landlord is entitled to the orders sought, the guiding principles for the grant of orders of temporary injunction are well settled and are set out in the judicial decision of Giella Versus Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that;“in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favor.

23. These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”.

24. Firstly, I wish to interrogate whether the Applicant has established a prima facie case.

25. The Landlord has stated that they sought to terminate their Tenancy Agreement and therefore issued a termination notice to the Tenant. In support of his case, the Landlord has demonstrated that indeed they served upon the Tenant a six-month notice to terminate tenancy upon expiry dated 20th May 2022 as well as an order of the honorable tribunal dated 28th March 2023 dismissing the Tenants Application.

26. On the other hand, the Tenant challenged the issuance of the notice by filing a reference in this honorable tribunal, the same which was dismissed on 28th March 2023.

27. Secondly, the Landlord ought to demonstrate that they will suffer irreparable damages if the interlocutory orders are not granted. The judicial decision of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states;” Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.

28. The Landlord submitted that they are the legal proprietors of the said property and indeed they sit to suffer damages if the Tenant continues to occupy the said property.

29. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in their favor. In the case of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (2018) EKLR which defined the concept of balance of convenience as:‘The meaning of balance of convenience will favor the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favor of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.

30. It is the Applicants averment that they duly served upon the Tenant a Notice to terminate the said Agreement upon the expiry of the lease agreement.

31. It is my considered view that the Tenant, is in default of the orders issued by this Honourable tribunal dated 28th March 2023 and if he was aggrieved by the said orders, he ought to have sought legal redress as provided for.

32. His actions of failing to comply the tribunal orders and instead continuing to occupy the property without any colour of right are in contravention of the Landlords proprietary rights.

C. Ordersa.The upshot Landlords Application dated 19th May 2023 is herby allowed on the following terms:b.The tenant shall clear the arrears of Kshs. 6,000/= as of 5th December 2022 in addition to any rent arrears accrued to date no later than 29th February 2024. c.In default, the Landlord is at liberty to proceed to levy for distress of the rent.d.The Tenant shall additionally hand over vacant possession of the premises to the Landlord on or before 29th February 2024 failure to which the Landlord shall be at liberty to break in and enter with the assistance of OCS Eldoret Central Police Station or any other Police station close by.e.This Ruling settles the Complaint dated December 5, 2022. f.Costs are awarded to the Landlord.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR ON 20TH FEBRUARY 2024 IN THE ABSENCE OF THE PARTIES.HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNAL