[2021] KEBPRT 76 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E452 OF 2021 (NAIROBI)

LYDIA WAITHIRA NJOKI.......................................................APPLICANT/TENANT

VERSUS

EPHANTUS CHEGE........................................................RESPONDENT/LANDLORD

RULING

1. Before me is a motion dated 25th August 2021 in which the tenant is seeking for a restraining order against the landlord from interference with her tenancy pending hearing and determination of the suit.

2. In the year 2016, the tenant secured the suit premises at a monthly rent of Kshs.5,500/-. She admits being in rent arrears of Kshs.29,500/- as at the date of filing the suit and wish to settle the same in instalments until the amount is fully paid.

3. The tenancy is controlled and as such cannot be determined without leave of this Tribunal.

4. By a reference dated 25th August 2021, the tenant complains that the landlord locked the door to the “residential” premises on the same date without any prior notice or court order bringing the business to a halt. This precipitated filing of instant reference.

5. The application is supported by the affidavit of the tenant of even date and the grounds on the face of the application.

6. The landlord opposes the application through a replying affidavit sworn on 14th September 2021 wherein it is deposed that the tenant was in arrears of Kshs.34,500/- as at 10th September 2021.

7. It is the landlord’s case that he had been served with a notice by Nairobi City County to remove the obstruction on the staircase and exit door of Kilome House where the tenant operates her business.

8. As a result, the landlord deposes that the Applicant’s tenancy is untenable and the same ought to be terminated to avoid the house being demolished by the City County Government.

9. The documents referred to in the landlord’s affidavit is a photograph of the suit premises marked ‘EC1’ and a notice under Five Brigade By-laws and Osha Act, 2007 marked ‘EC-2’ stating that Kilome House Plot no. 209/236/105 was visited and the following infringements noted:-

“(i) Failure to maintain good house keeping.

(ii) Obstruction of the stair well.

(iii) Blocking of exit door”.

10. Parties were directed to file written submissions and both complied.

11. According to the tenant, closure of the suit premises by the landlord was not lawful as it offended section 4 of Cap. 301 in regard to termination of a controlled tenancy. The landlord is accused of failing to issue the tenant with the prerequisite and mandatory notice of two months before attempting to unlawfully evict/lockout the applicant from the business premises.

12. The landlord closed the premises on or about 25th July 2021 without giving notice.

13. On the other hand, the landlord submits that the tenant owes the landlord rent arrears and the only issue is the amount of money due and owing and modalities of paying the same. He submits that the tenancy ought to be terminated on account of the letter from the Nairobi City County Government aforesaid.

14. Going by the pleadings and submissions, I am required to determine the following issues:-

(a) Whether the tenant is entitled to the reliefs sought in the application and reference.

(b) Who is liable to pay costs of the suit?

15. The application before me is in the nature of an injunction. The parameters considered in such an application were long settled in the case of Giella – vs. Cassman Brown & Co. Ltd (1973) EA 358 as follows:-

(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.

16. I have examined the materials placed before me and note that the Respondent/Landlord has not denied closure of the Applicant’s business premises. Apart from the letter from the County Government of Nairobi City, there is no legal justification given for the said action.

17. Even if the tenant was in rent arrears, this could not be a legal basis for closing the suit premises. The application therefore succeeds on the first limb.

18. On the second limb, the tenant’s counsel submits that the landlord did not issue the tenant with any notice of intention to terminate the tenancy under Section 4, Cap. 301 Laws of Kenya. Compliance with the procedure laid down under the Act is mandatory for termination or interference with a controlled tenancy. This makes the closure illegal.

19. In the premises, it is my view that there was no justification whatsoever for the landlord to close the tenant’s shop without following the procedure laid down under Cap. 301. This illegality in my view having been visited upon the tenant amounts to irreparable injury as equity does not suffer a wrong without a remedy. In this regard, I rely on the court of appeal decision in the case of Aikman – vs- Muchoki (1982) eKLR at page 4/6 where it was held as follows:-

“…….the court ought never to condone and allow to continue a flouting of the law. Those who flout the rightful title of others and brazenly admit it, ought to be restrained by injunction. If I am adding a new dimension for the grant of an interlocutory injunction, be it so. Equity will not assist law breakers”.

20. Since the reference is predicated upon the same grounds as the application, the same shall be deemed as determined by this application.

21. In regard to the notice by the County Government of Nairobi City, I find and hold that the same does not oust the provisions of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301, Laws of Kenya. In this regard, I only need to cite the decision in the case of Bachelors Bakery Ltd -VS- Westlands Securities Ltd (1982) eKLR at page 3-4/6 where the Judge had the following to say about the said Act:-

“The Act is legislation of a special nature enacted solely for the protection of tenants. It allows the parties a choice of occupation of premises under a controlled or uncontrolled tenancy. In the first case, within the ambit and in the second case outside 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” (emphasis added).

22. Even if the landlord had received notice under the Nairobi City County Government ‘Fire Brigade By Laws and Osha Act 2007’ he had to comply with issuance of the requisite notice under Cap. 301, Laws of Kenya in order to obtain vacant possession of the suit premises.

23. In the premises, the following final orders commend to me:-

(a) The application dated 25th August 2021 and the reference of even date is allowed in the following terms:-

(i) The landlord is hereby restrained from terminating the tenant’s tenancy in plot no. 209/236/105 or in any other manner interfering with her controlled tenancy without adhering to the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya.

(ii) The Landlord shall pay costs of Kshs.30,000/- to the tenant for the application and reference which shall be defrayed against the rent account.

(iii) The OCS, Central Police Station will ensure compliance with orders of this Tribunal.

(iv) The landlord shall be at liberty to serve the prescribed notice upon the tenant.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF DECEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in the absence of the parties.