[2021] KEBPRT 47 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E182 OF 2021 (NAIROBI)

MARIA WAMBUI........APPLICANT/TENANT

VERSUS

MERU CENTRAL COFFEE CO-OPERATIVE

UNIONS LTD......RESPONDENT/LANDLORD

RULING

1. Through a motion dated 7th June 2021, the tenant is seeking for a restraining order against the landlord from evicting her from the tenancy premises comprising of 15 stalls on ground floor of Imenti House situate on L.R NO. 209/2437, Nairobi or in any manner interfering with her quiet possession and enjoyment of the premises pending hearing and determination of the Reference.

2. The application is supported by the annexed affidavit of the applicant sworn on 7th June 2021 and the grounds on the face of the application.

3. This are15 stalls comprising the suit premises are sublet to different sub-tenants. By a letter dated 1/10/2019, the landlord requested the tenant to enter into a 10 year lease agreement on condition that she pays Kshs.5,000,000 as goodwill. The letter is marked ‘MW-1’.

4. The tenant was not agreeable to payment of Kshs.5,000,000/- as goodwill. By a letter dated 7th December 2020, the landlord informed the tenant that her lease would expire on 30th June 2021 without an option of renewal. Thereafter, the landlord intimated that it would take possession of the suit premises.

5. The tenant deposes that the landlord intended to handover the suit premises to Toner World Limited which had sent letters to subtenants informing them of the change in management of the 15 stalls and requiring them to vacate by 30th June 2021. A copy of the said letter is marked ‘MW-3’ .

6. The tenant contends that there has never been any written agreement between her and the landlord in respect of the suit premises.

7. Since the tenancy is controlled and could not be terminated or altered to the tenant’s detriment without following the process set out under Cap. 301, Laws of Kenya, the tenant decided to approach this Tribunal for protection.

8. The application is opposed through grounds of opposition dated 6th August 2021 whose filing according to the court record was not paid for. I did not see any replying affidavit by the Respondent.

9. According to the Respondent, section 3(3) of the Law of Contract Act, Cap 23 stipulates that no suit shall be brought against the disposition of an interest in land unless the contract which the suit is founded is in writing.

10. Secondly, the Respondent contends that the tenant has sublet the suit premises without the consent of the landlord contrary to section 3(2) and the schedule to Cap. 301 Laws of Kenya.

11. Finally, the Respondent opposes the application on the ground that the threshold for the grant of an injunction has not been met by the tenant.

12. I am now required to determine the following issues:-

a. Whether the application meets the test for granting a temporary injunction.

b. Who is liable to pay costs?

13. The application was ordered to be disposed of by way of written submissions and both parties complied 1st all consider the said submissions together with the issues framed above.

14. The principles considered in an application for injunction were long settled in the Locus Classicus 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.

15. A prima facie case was defined in the case of Mrao – vs- First American Bank of Kenya Ltd & 2 others (2003) e KLR at page 8/10 as follows:-

“…………..a prima facie case, I would say that in Civil Cases, it is a case in 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”.

16. The grant or refusal of an injunction is an exercise of discretion which the court ought to exercise judicially.

17. In the present case, there is no contest that the applicant is a protected tenant who was threatened with eviction by the Respondent after 30th June 2021 when the notice was expiring.

18. The landlord has not presented before this Tribunal any written lease agreement which is referred to in its letter of 7th December 2020 marked ‘MW-2’ annexed to the applicant’s supporting affidavit. Had the same been annexed, it would have been easy to lighten or inform the Tribunal whether it allowed subletting or not.

19. In an application for injunction, the court is supposed to exercise caution and not make definite findings. This is what the court of appeal states in Mbuthia – vs- Simba Credit Finance Corporation & Another(1988) eKLR at page 4-5/20 where it was held as follows:-

“The correct approach in dealing with an application for the injunction is not to decide the issues of fact but rather to weigh up the relevant strength of each sides propositions. There is no doubt in my mind that the learned Judge went far beyond his proper duties and has made final findings of fact on disputed affidavits”.

20. I note that the Respondent has not filed any replying affidavit to controvert the facts presented by the applicant and in particular that it failed to serve proper notices under section 4(2) of Cap. 301, Laws of Kenya. This means that the application meets the first test.

21. In regard to the second test, I find that the application before me is in the nature of a quia timet injunction. In the case of Kwality candies & Sweet Ltd – vs- Industrial Development Bank Ltd (2005) eKLR at page 6-7/11, the principles for the grant of such an injunction were considered 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 an 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”.

22. In the present case, unless the orders sought herein are granted, the feared eviction of the tenant and subtenants will take place thereby altering the status quo in the pendency of the Reference. As such the balance of convenience tilts heavily in favour of granting the injunction.

23. Any eviction done against a tenant without following the procedure laid down under Cap. 301, Laws of Kenya shall no doubt be illegal. The preamble of Cap. 301 clearly states that the Act was enacted to preventinter-alia illegal eviction of controlled tenants. This Tribunal shall have abdicated its duty if it did not prevent the threatened eviction herein.

24. In the premises, I proceed to make the following orders:-

a. The application dated 7th June 2021 is allowed in terms of prayer (c ) and (d) thereof.

b. The matter shall be fixed for hearing of main Reference upon both parties complying with order 11 of the Civil Procedure rules in any event within the next thirty (30) days hereof.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 20TH DAY OF DECEMBER, 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mr. Gachui for the Landlord

Mr. Kangata for the Tenant

Further order:

Mention on 2/2/2022 to confirm compliance.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL