[2021] KEBPRT 174 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 1023 OF 2020 (NAIROBI)

MAURICE KINYANJUI NGANGA.............................................APPLICANT/TENANT

VERSUS

GRACE WACHUKA MANGA...........................................RESPONDENT/LANDLADY

RULING

1. Through an application dated 17th December 2020, the Tenant/Applicant is seeking in material part for a restraining order stopping the Landlady/Respondent from interfering, trespassing, occupying or dealing with shop no. 3, located on the property known as plot no. 146, Patanisho pending determination of the main suit.

2. The application is supported by the Applicant’s affidavit sworn on 17th December 2020 and the grounds set out on the face of the application.

3. The relationship between the two parties commenced with a tenancy agreement dated 29th June 2020.

4. On 9th October 2020, the Landlady is said to have had a “Lover’s quarrel” with one of the tenant’s employees which led to physical confrontation. As a result the employee was incarcerated and charged with grievous harm but was bailed out by the tenant.

5. The Landlady did not take the issue of bailing out kindly and begun to accuse the tenant of running the liquor store like a bar thereby causing noise pollution which is demonstrated through annexture “MNN3”.

6. The Landlady is said to have started bringing goons and police to harass the tenant’s employees, clients and this also affected the business operations.

7. A termination notice dated 12th October 2020 was served upon the tenant citing the grounds for the same as “1. complaints by the tenants 2. poor payment”. It was expressed to take effect on 1st January 2021.

8. It is the tenant’s case that he has never defaulted on any payments and had even overpaid rent. The landlady continued sending goons to the tenant’s business as well as police to harass, threaten and intimidate his employees and customers.

9. It is the tenant’s case that his constitutional right to own property had been violated, abused and ridiculed as a result of which he moved to the Honourable Tribunal.

10. In opposing the application, the Landlady swore a replying affidavit on 26th January 2021 in which she deposes that the suit premises were leased out for purposes of a wines and spirits shop where customers would purchase and take away liquor in line with the lease agreement dated 29th June 2020.

11. Unfortunately, the tenant converted the premises into a sit in pub/bar where customers buy and consume alcoholic beverages within the premises as per annextures “(GWM2)”.

12. This has occasioned a lot of noise by revelers thereby disturbing other tenants in the building.

13. The landlady further complains that the tenant plays loud music up to late hours and that revelers from the tenant’s premises misuse toile facilities on the ground floor meant for few tenants thereby straining the same.

14. Besides, the Landlady complains of general misbehavior in the compound by inebriated persons which gives the whole building a bad reputation.

15. The foregoing issues have led to numerous complaints by other tenants some of whom vacated as evidenced by annexture “GWM3”.

16. The Landlady complains about late payment of rent contrary to the lease agreement which stipulates that the same be made before 10th of every month.

17. As a result, the Landlady served notice to terminate tenancy marked “GWM4” and an explanatory letter marked “GWM5”.

18. It is the Landlady’s contention that she was assaulted by the tenant’s employee when she sought for reduction of noise emanating from the loud music then being played in the suit premises. A previous assault indent involving another tenant is also exhibited as annexture “GWM6”

19. As a result, the tenant has become undesirable and his continued occupation of the premises has exposed the Landlady to losses as other tenants continue to vacate the building on account of unfavourable conditions brought about by the tenant’s bar.

20. The business was visited by the Nairobi liquor licensing Board on 7th January 2021 and ordered closed in terms of annexture “GWM7”. The tenant rubbed off the notice and continued to operate the business.

21. The tenant did not oppose the termination notice and it is the landlady’s position that the same took effect and as a result, the tenant should have vacated by 1/1/2021.

22. As a result, the Landlady prays for dismissal of the application with costs.

23. The application was ordered to proceed by way of written submissions and both parties complied.

24. Going by the foregoing pleadings, I am required to determine the following issues:-

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

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

25. The principles considered in an application for interlocutory injunction were well settled by the Locus Classicus case ofGiella – vs- Cassman Brown & Co. Ltd (1973) EA 358 to wit:-

(a) “An applicant must show a prima facie case with a probability of success.

(b) An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.

(c) When the court is in doubt, it will decide the application on the balance of convenience”.

26. In regard to the issue as to whether the applicant has brought himself within the principles for the grant of an interlocutory injunction, I wish to make the following findings:-

(i) The tenancy agreement dated 29th June 2020 created a controlled tenancy.

(ii) The permitted user of the premises is clearly indicated as “wine and spirit”.

(iii) Either party could issue a 3 months notice to terminate the lease agreement.

(iv) The tenant was issued with a notice for termination of tenancy which was expressed to take effect on 1st January 2021.

(v) There is no evidence that the tenant filed any objection to the said notice by way of a reference as required under Cap. 301, Laws of Kenya.

(vi) The building wherein the suit premises is situate has other residential tenants.

(vii) Although it is disputed by the tenant, it is clear from the exhibited photographs that he had consented the suit premises into a bar where customers buy and drink alcohol within it.

(viii) There are letters of complaints by other tenants over the manner of operation of the business by the Applicant which affected common facilities e.g toilets adversely.

(ix) The documentary exhibits annexed by the tenant shows late payment of rent contrary to provisions of the lease agreement.

(x) The tenant has admitted that he did not have a liquor licence to operate the business as a pub/bar from the relevant authority.

(xi) The tenant has not explained on what basis he has been able to continue operating a liquor business without the necessary authority of the County Government of Nairobi City.

(xii) There having been no reference filed against the termination notice, the same took effect on 1st January 2021 as contended by the Landlady.

(xiii) The contention that issues of noise pollution could only be canvassed before the National Environment Tribunal is misconceived as it can be properly raised before this Tribunal under section 12(4) of Cap. 301, Laws of Kenya.

(xiv) The issue of Criminal assault that took place in the suit premises being a subject matter of criminal investigations cannot be canvassed before me under section 12(2) of Cap. 301, Laws of Kenya and I shall not address it.

(xv) The complaints levelled against the tenant are valid and within this Tribunal’s jurisdiction under section 12 of Cap. 301 Laws of Kenya.

27. In the premises, I find and hold that the tenant has not brought himself within the principles of granting an interlocutory injunction.

28. In regard to the issue of costs, I find and hold that the same are in the court’s discretion and always follow the event unless for good reasons otherwise ordered.

29. In conclusion therefore, I make the following orders:-

(a) The application dated 17th December 2020 is hereby dismissed.

(b) The orders given on 18th December 2020 are hereby vacated and/or discharged.

(c) The costs of the application assessed at Kshs.25,000/- are awarded to the Respondent.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 12THDAY OF SEPTEMBER VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Kori for Tenant/Applicant

Wanjohi for Landlord/Respondent