[2021] KEBPRT 39 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 60 OF 2018 (MACHAKOS)

MARTIN MASYA MUSANGO.................................TENANT

VERSUS

MATERU WATHUTA NJAUNI..........................LANDLORD

RULING

1. The Tenant’s notice of motion dated 18th June 2019 seeks the following orders;

a. Spent

b. That this honourable court do stay its orders of 28th May 2019.

c. That the orders of 14th February 2019 be reinstated on such terms as the court deems fit.

d. Costs.

2. The application is supported by the affidavit of Martin Masya Musayu which I summarize as follows hereunder;

a. That on 14th February 2019, the court issued orders that the Landlord would not interfere with the Applicant’s tenancy on plot No. 127/9/6934 Mavoko Municipality.

b. That the tenancy between the parties herein is a controlled tenancy.

c. That during the pendency of the lease, the Tenant/Applicant had sub-let the premises to his sub-tenants.

d. That though the Landlord did not terminate the controlled tenancy, he directly engaged the Applicant’s subtenants and collected rent directly from some of them.

e. That the rent collected from the subtenants was to be computed and considered in the reconciliation of rent due to the Landlord.

f. That the Landlord has attempted to enter into lease agreements with the Applicants subtenants.

g. That it is unfair for the Landlord to collect rent from the subtenants and still demand rent from the Applicant.

h. That the Tenant/Applicant has overpaid the Tenant by Kshs 147,000/- which money the Landlord ought to refund.

i. That failure to attend court was inadvertent as the Tenant was advised by his advocate that the matter had been rescheduled for hearing on the following day.

3. The application is opposed. The Landlord has sworn an affidavit which I summarize as follows;

a. That since the reference herein was instituted on 22nd November 2018, the Tenant has taken no steps to prosecute the same.

b. That the Tenant’s application for injunction dated 22nd November 2018 was allowed on 14th February 2019, orders of injunction were granted.

c. That the Landlord’s application dated 7th March 2019 sought to vary the orders issued in favour of the Tenant on 14th February 2019. This application was allowed on 28th May 2019.

d. That the current application now seeks a reinstatement of the orders issued on 14th February 2019.

e. That the orders of 14th February 2019 were issued ex-parte.

f. That the Tenant/Applicant did not file any pleadings in opposition to the second application for variation (this must be the Landlord’s application dated 7th March 2019) and the current application is therefore tantamount to a misplaced appeal.

g. That the orders granted on 28th May 2019 still grant the Tenant an injunction subject to the payment of rent.

h. That it would be prudent for the Tribunal to consider the Landlord’s affidavit sworn on 25th January 2019 in response to the Tenant’s application dated 22nd November 2018.

i. That the Tenant only leased a part of the Landlord’s premises, ¼ acre and granting an injunction would be tantamount to locking the Landlord out of the entire parcel and permitting third parties into his premises without his approval and or consent.

j. That as at April 2021, the Tenant owes the Tenant rent of Kshs 357,000/-

k. That the Landlord has not collected rent from any third parties save for one Henry Odhiambo Onguru who has no relationship with the Tenant/Applicant.

4. The parties were directed to file their written submissions but as at the time of writing this ruling, only the Respondent has filed his submissions. The said submissions may be summarized as follows;

a. That prayer 1 and 2 of the application dated 18th June 2018 have been expended as stay was granted and the matter certified as urgent.

b. That the Tenant having never challenged the application that gave rise to the orders of 14th February 2019 despite being granted the opportunity is precluded from challenging the outcome of that application in this oblique fashion.

c. That reinstating the orders of 14th February 2019 will give rise to a conundrum as there will exist two conflicting orders on the subject matter.

d. That no prayer has been made for the setting aside of the orders of 28th May 2019as staying them is not the same as setting the same aside.

e. That it would be a vain exercise to go back to an unopposed application.

f. The orders sought to be reinstated granted the Tenant access to the whole of the Landlord’s premises when the Tenant had only leased a part thereof.

g. That the Landlord wishes that the reference is ultimately determined.

5. The issue that arises for determination in this application is whether the Tenant is entitled to the two prayers sought in his application dated 18th June 2019.

a. On 25th May 2019, the Tribunal issued the following orders;

i. That the orders issued on 14th February 2019 are hereby set aside.

ii. Costs to the Landlord at Kshs 20,000/-.

iii. The Landlord is at liberty to levy distress and recover arrears of rent of Kshs 155,000/-.

b. The orders of 14th February 2019 are in the following terms;

i. The Landlord, his agents, servants and/or employees are restrained from interfering, locking, threatening, harassing, disconnecting electricity and water, evicting, disposing and/or in any way interfering with the Tenant’s occupation and lawful enjoyment of his tenancy on plot No. 12719/6934 situated in Mavoko Municipality in Machakos County.

ii. The Landlord shall pay the Tenant costs of the application assessed at Kshs 20,000/-.

iii. The Tenant shall deduct the costs from the rent.

c. The Tenant/Applicant seeks to say the orders of 28th May 2019 and reinstate the orders which were issued on 14th February 2019.

6. On 20th March 2019 when this matter came up for hearing of the application dated 7th March 2018, the Tribunal made the following orders in the presence of Mr Githuka counsel for the Landlord and Mr Murage counsel holding brief for Mr Kalwa for the Tenant;

a. Hearing of the notice of motion shall be (heard) on 28th May 2019.

b. The Tenant/Respondent shall file their responses within seven days.

c. The Tenant shall continue to pay the rent arrears and continue to pay accruing rents.

7. On 28th May 2018 when the application came up for hearing, the Tenant and his counsel did not attend court, the Tenant had neither filed his responses within the seven days granted by the Tribunal on 20th March 2019. Counsel for the Landlord then prayed that the application dated 7th March 2019 be allowed as prayed. The court granted his wish.

8. In seeking to have the orders issued by the Tribunal on 28th May 2019 set aside, the Tenant is expected to explain why he did not attend court on the said date and further why he did not file his responses within the time limits set by the Tribunal. I have perused the affidavit of the Tenant sworn on 18th June 2019. The only paragraph I find relevant to the setting aside of the orders of 28th May 2019 are paragraphs 13 and 14 of the said affidavit which are in the following terms;

13. That in the circumstances, it is only fair and just that the orders of 14th February 2019 be set aside.

14. That failure to attend court was very “in adverted:” as I was advised by my advocate that the matter had been rescheduled for hearing the following day.

9. The allegation by the Tenant that this matter had been rescheduled for hearing the following day is not borne out by the proceedings of 28th May 2019. I have perused the record and I have not seen any proceedings fixing this matter for any purposes on 29th May 2019. In any event, the Tenant does not state that he came to court the following day or if he did, what transpired on the said date.

10. In the circumstances, I find that the Tenant has not given sufficient reasons to enable me exercise my discretion in setting aside the orders issued on 28th May 2019.

11. I also note that the Tenant has not applied to have the orders of 28th May 2019 set aside and or varied. He has only sought to have the said orders stayed. I agree with the Landlord that setting aside the orders and staying the same are two different issues. The staying of the orders would mean that the same remains alive albeit not executable. Proceeding to grant the order for reinstatement sought by the Tenant would mean that there would be two contradictory orders in existence, one setting aside the orders (but stayed) and one injuncting the Landlord from interfering with the Applicant’s tenancy.

12. In the circumstances, the Tenant’s application dated 18th June 2019 lacks merit and the same is dismissed with costs to the Landlord/Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon P. May (Vice Chair) this 10th day of December, 2021 in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL