[2022] KEBPRT 25 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E399 OF 2021 (NAIROBI)

LEE OWEN MADARA T/A FIRST SUNSHINE LIMITED...................APPLICANT/TENANT

VERSUS

JACQUELYNE SAGIMO JAMES....................................................................1ST RESPONDENT

IRENE...................................................................................................................2ND RESPONDENT

WENDY SAGIMO..............................................................................................3RD RESPONDENT

JOSIAH OUGO SAGIMO.................................................................................4TH RESPONDENT

RULING

1. The tenant moved this Tribunal by way of notice of motion dated 10th August 2021 seeking restraining orders against the Respondents from entering, locking, evicting, levying distress, harassing and intimidating him in relation to plot no. 33, Rabai Road, Buruburu Estate, Nairobi pending the hearing and determination of this suit.

2. The Tenant further seeks for an order that the notices to vacate dated 1st March 2021 and 1st April 2021 issued by the Respondents to the Applicant be declared to be of no effect.

3. The application is supported by the affidavit of the applicant of even date and the grounds on the face thereof.

4. The applicant has been a tenant in the suit premises for the last over eleven (11) years having taken possession from Olivia Sagimo who passed away in 2021. The tenant runs a garage business thereon and deposes that he has gained substantial goodwill and customers over the aforesaid period.

5. On 1st March 2021, the tenant received a ninety(90) days notice to vacate the said land parcel from the Respondents who referred themselves as “the Sagimos” being the children of the late Olivia Sagimo.

6. On or about 1st April 2021, a second notice of ninety (90) days was served upon the applicant by “The Sagimo Landlord” citing the ground that the land required to be developed and that the tenant was inconsistent in payment of rent, Stubbornness and refusal to sign a lease.

7. The applicant was not willing to comply with the said notices which fact he communicated to the landlord verbally. It is the applicant’s contention that the said notices do not satisfy statutory requirements of a controlled tenancy.

8. The applicant came to this Tribunal fearing that he would be unlawfully evicted by the Respondents and his goods sold or disposed of thereby occasioning irreparable loss to him.

9. Interim orders were granted on 11th August 2021 in terms of prayer 1 pending hearing inter-partes.

10. The Respondent filed a notice of preliminary objection dated 23rd September 2021 which was on 4th November 2021 dismissed for want of prosecution.

11. On 25th November 2021, the Respondents filed grounds of opposition stating that the application dated 10th August 2021 is incompetent as it was not accompanied by a reference under Rule 5 of the landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and procedure) Regulations. They also contend that the applicant is interfering with the estate of the late Olivia Sagimo Wagori (deceased) and not deserving of the orders sought.

12. The applicant is accused of forum shopping by filing the same application seeking the same orders before different courts. He is further accused of seeking to lay basis for claiming adverse possession.

13. Finally, the applicant is accused of abuse of orders of temporary injunction granted on 12th August 2021 by not paying rent.

14. The application was directed to be canvassed by way of written submissions and both parties complied. I will advert to the submissions while dealing with the issues for determination.

15. The issues for determination are:-

(a) Whether the application is incompetent for lack of a reference or otherwise.

(b) Whether the applicant is entitled to the reliefs sought.

(c) Who is liable to pay costs?.

16. Regulation 5 of this Tribunal’s Regulations is in the following terms:-

“Reference to the Tribunal under section 6(1) or SECTION 12(4) OF the Act shall be in forms B &C in the schedule of these Regulations”.

17. The Respondents submit that the applicant did not file any reference as contemplated by Rule 5 of the said Regulations whose effect was that the application is not anchored on any substantive reference. As such, the Respondents submit that it is hanging in the air, misconceived, fatally defective and cannot stand. They cite the decisions in Margaret Rachel Mbogo & Another – vs- Robert Njoka Muthara & Another (2021) eKLR and Khadar Developers Limited – vs- Diamond Trust Bank Limited (2020) eKLR.

18. It is important to note that the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) forms and procedure)Regulations, were promulgated in the year 1966. They therefore predate the Constitution of Kenya, 2010 which under Article 159 (2) (d) requires that justice be administered without undue regard to procedural technicalities.

19. What amounts to procedural technicality was considered in the case of James Muriithi Ngotho & 4 Others – vs- Judicial Service Commission (2012) eKLR at page 5-6/7 where Justice C.W. Githua observed as follows:-

“We all know what is normally regarded as procedural technicalities could be in the nature of procedural lapses that do not go to the root of the matter under consideration. They would for example include lapses like using the wrong mode of moving the court for certain reliefs/orders e.g filing of a notice of motion to seek leave to commence judicial review proceedings instead of a chamber summons prescribed under order 53 Rule 1, Civil Procedure Rules or citing the wrong provisions of the law while the substance of the application shows clearly that the law cited is not applicable to the subject of the litigation among many others.

I am fortified in this finding by the definition of the words ‘procedure’ and ‘technicality’ since it is from a combination of these two words that the phrase procedural technicality must have been coined from. The procedure is defined in the black’s Law Dictionary, 9th Edition page 13/23 as “a specific method or course of action”. The judicial rule or manner for carrying a Civil Law Suit or Criminal prosecution also termed rules of procedure”.

20. I have looked at the decision in the case of James Muriithi Ngotho (supra) and noted that the superior court was dealing with provisions of Order 40(1) of the Civil Procedure Rules which requires that there be a suit as a basis for an injunction. In the said case, the applicants had not filed a plaint as required under section 2 of the Civil Procedure Act, Cap. 21 Laws of Kenya. All the other cases cited dealt with applications under order 40 of the Civil Procedure Rules.

21. In the case of Bachelors Bakery Ltd – vs- Westlands Securities Ltd (1982) eKLR, the court of appeal at page 3-4/6 had the following to state about Cap. 301, Laws of Kenya:-

“The Act is a legislation of a special nature enacted solely for the protection of tenants. It allows the parties a chance of occupation of premises under a controlled or uncontrolled tenancy. In the first case within the ambit, and in the second case, outside the ambit of the Act. In the instances to which the provisions of the Act are declared to apply, it overrides any other written law which is in conflict with its provisions”.

22. I find and hold that Section 12(4) of Cap. 301, Laws of Kenya does not require the filing of a suit as a basis of an application for injunction. Although the applicant herein has not filed a complaint in the manner stipulated by Regulations of the Tribunal’s Regulations, I am satisfied that the notice of motion clearly sets out his complaint and this Tribunal has jurisdiction to investigate and reach a verdict.

23. The Respondents contend that the application is an abuse of court process in the light of MCCO MMSU E1151 of 2021. I note that the Respondents did not file any replying affidavit to the application and seek to rely on the further affidavit sworn by the applicant in response to the dismissed preliminary objection.

24. The said suit appears to have been filed on or about 23rd August 2021 whereas the current application was filed on 10th August 2021. It is trite law that the subsequent suit is the one which ought to be stayed and the issues raised in that regard ought to be canvassed in the said suit. I am in this regard guided by the decision of the High Court in the case of Republic – vs- Paul Kihara Kariuki, Attorney General & 2 others ex-parte Law society of Kenya (2020) eKLR at paragraph 27 where justice Mativo cited with approval the decision of the High Court of Uganda in Nyanza Garage – vs- Attorney General thus:-

“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters and creating and or adding to the backlog of cases courts have to deal with. Parties could be well advised to avoid a multiplicity of suits”.

25. In the present matter, the Respondents ought to apply for striking out of the second case or stay of proceedings if they so desire. This Tribunal has jurisdiction to adjudicate over this dispute as it relates to a controlled tenancy.

26. In regard to whether the applicant is entitled to the reliefs claimed, I wish to note that the notices served by the Respondents are defective for non- compliance with Section 4(2) of Cap. 301, Laws of Kenya. They are declared to be of no legal effect.

27. Secondly, the applicant came to this Tribunal fearing imminent eviction by the Respondents based on the two defective notices. The nature of injunction sought by the applicant is a quia timet injunction which this Tribunal has jurisdiction to grant.

28. A quia timet injunction was defined in the case of Industrial Development Bank Limited (2005) eKLR at page 6/11 where the court cited the case of Craicola and Burgesses of Swansea (1927) LR 235 as follows:-

“A quia timet action is not based upon hypothetical facts for the decision of an abstract question. When the court has before it evidence sufficient to establish that injury will be done if there is no intervention by the court. It will act at once and protect the rights of the party who is in fear and thus supply the need of what has been termed protective justice. It is a very old principle”.

29. The court went on to hold as follows:-

“The orders of injunction sought in this application are what are commonly referred to as preventive as opposed to restrictive injunctions. The preventive injunction is usually referred to in their esoteric latin name of Quia timet injunctions. Quia timet literally means “because of fear”. So a quia timet action is one which a person may obtain an injunction to prevent or restrain some threatened act being done, which money would be no adequate or sufficient remedy. A quia timet action is based on the theory of an irreparable injury taking place if the act threatened is done”.

30. I am therefore satisfied that the applicant’s fear is well founded on the two defective notices and the alleged previous distress alluded to in his affidavit of 3rd February 2022 which is said to have taken place on 11th and 12th August 2021 pursuant to which he claims that goods worth Kshs.1,200,000/- were taken. This will be subject of the main hearing as well as the issue of rent owing by the tenant.

31. In the premises, I make the following orders:-

(i) An order of injunction be and is hereby issued in terms of prayer 2 of the application dated 10th August 2021.

(ii) An order be and is hereby issued declaring the notices to vacate dated 1st March 2021 and 1st April 2021 as defective, null and void fur all purposes.

(iii) Costs of the application assessed at Kshs.15,000/- granted to the applicant/tenant.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF MARCH 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Otieno for the Respondents

No appearance for the Tenant