[2022] KEBPRT 9 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E711 OF 2021 (NAIROBI)

MAXWEL WAWERU................APPLICANT/TENANT

VERSUS

JOHN MBUTHI..............RESPONDENT/LANDLORD

RULING

1. The tenant herein moved this Tribunal vide a reference dated 24th November 2021 complaining that the landlord had unlawfully closed and denied him access to the premises, toilets and all his goods were locked inside contrary to provisions of Cap. 301, Laws of Kenya. He therefore sought the court’s intervention.

2. The tenant simultaneously filed a motion of even date supported by his affidavit seeking for an order to open and allow him access to the business premises as well as the toilet facilities therein. He also seeks for restraining orders against the landlord from unlawful interference with his quiet occupation and enjoyment of the suit premises at plot no. Kingeero 14 A, Kamutaini pending hearing of the case.

3. The tenant complains that on 1st November 2021, the landlord closed the business premises thereby denying him access with the sole intention of evicting him. He also denied him access to the toilets. All efforts to have the premises reopened were fruitless.

4. It is the applicant’s case that he has heavily invested in the suit premises and unless the landlord was restrained from illegal activities of closure and eviction, he stood to suffer loss and damage.

5. By reason of the closure, the applicant deposes that he was being denied an opportunity to earn a living without any notice having been served upon him.

6. Interim orders were issued in terms of the application on 26th November 2021 pending hearing inter-partes.

7. The application is opposed through a replying affidavit of the landlord sworn on 18th January 2022 wherein it is deposed that there was no evidence of interference with the tenant’s quiet enjoyment of the suit premises. He also deposes that he has always maintained a professional contractual relationship with the applicant pursuant to the rental agreement marked ‘JNN-001”.

8. According to the landlord, the dispute between him and the tenant emanated from actions of the latter for contravening the Kiambu County Alcoholic Drinks Control (amendment) Act, 2021 and the rental agreement by selling alcoholic beverages without a valid license.

9. The landlord deposes that he visited the sub-county licensing Board and confirmed that the receipt marked ‘JNN-002’ was not a license and that the applicant lacked a valid license which is an offence.

10. The landlord accuses the tenant of subletting the premises to one Prisca in contravention and disregard of section 1(d) of the rental agreement as per whatsapp chats marked ‘JNN-003’. He has also put a banner that obstructs other tenants’ business premises.

11. It is denied that the applicant will suffer irreparable loss or damage and the landlord deposes that he is attempting to legitimize his shortcoming and contravention of the law.

12. The landlord contends that the tribunal has not been presented with evidence to show that the applicant is deserving of the orders sought and the proper orders that should be made against the tenant ought to be for eviction for contravention of the law.

13. The tenant filed a further affidavit sworn on 2nd February 2022 wherein he states that he had initially rented three shops and later surrendered two of them on account of constant harassment by the landlord.

14. The tenant has attached a photograph marked “MW1” to show that the landlord had closed the main gate thereby denying him and his clients access to the premises.

15. The tenant denies having put any banner obstructing other tenants or subletting the premises and requests for a rent inspector to be sent to investigate the claim. The landlord is accused of declining to accept rent for January 2022 and proceeded to serve a letter dated 5th January 2022 giving notice of termination of tenancy with effect from 1st February 2022 despite the orders issued herein. The notice is marked ‘MW-2’.

16. The tenant contends that this Tribunal has no jurisdiction to deal with issues of licensing under the Kiambu County Alcoholic Drinks Control (amendment) Act and the issue of selling alcoholic beverages without a valid license is an afterthought which cannot be entertained in this suit.

17. The application was ordered to be canvassed by way of written submissions and both parties complied. I shall address the submissions together with the issues for determination set out below.

18. From the pleadings, the issues for determination herein are:-

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

(b) Who is liable to pay costs?.

19. Before me is an application for equitable relief of injunction. The principles considered by courts in granting or refusing such relief were 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 a balance of convenience.

20. A prima facie case was defined in the case of Mrao Ltd – vs- First American Bank of Kenya Ltd & 2 others (2003) eKLR at paragraph 4 as follows:-

“4. A prima facie case in a civil application includes but is not confined to a “genuine and arguable case”. It is a case 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”.

21. The applicant submits that although he has been faithfully paying rent, the landlord closed his business premises without any justifiable reason. He also started bringing issues of lack of liquor license whereas the complaint ought to be raised by Kiambu County Government. It is the tenant’s case that he has never rented out the premises to anyone else and he was not a party to the whatsapp messages annexed to the landlord’s replying affidavit.

22. It is submitted by the tenant that despite the interim order given in this matter, the landlord issued him with notice to vacate the suit premises on 5th February 2022. He also refused to accept rent in order to evict the tenant.

23. On the other hand, the landlord submits that the tenant lacks a permit to sell alcohol. The photos of locked gate according to the landlord was on account of security reasons.

24. According to the landlord, the tenant has come to court with unclean hands as the business premises has never been closed by him. It is his case that the tenant had sublet the premises without consent. It is denied that the tenant has been refused access to the toilets neither has there been interference with his quiet possession and enjoyment of the premises.

25. It is the Respondents case that this Tribunal should not interfere with contractual obligations of the parties as contained in the rental agreement. The case of National Bank of Kenya – vs- Pipe Plastic Sarkolit (K) Ltd & Another (2001) eKLR is cited in support of the said submission.

26. The landlord admits issuing notices to terminate tenancy in the pendency of the case.

27. Having analysed the pleadings and submissions of both parties, it is my considered view that the tenant has satisfied the principles for granting an order of injunction. Although the landlord denies that he closed the business premises, it is my finding that his conduct betrays him. Even after his action was challenged by the tenant, the landlord went ahead to allege that the tenant was carrying on an illegal enterprise of selling alcohol without a license from Kiambu County Government. He also alleges that the tenant has sublet the premises without his consent.

28. In my considered view, the landlord has no mandate to enforce licensing by-laws of the County Government in regard to sale of alcoholic drinks. He went out of his way to demonstrate that the business was not licensed. As submitted by the tenant this Tribunal has no jurisdiction to deal with criminal offences under Section 12(2) of Cap. 301, Laws of Kenya.

29. I have no doubt in my mind that no sane person can run to court to allege closure of a business premises without any reason. I hold that the tenant has proved on a balance of probabilities that his business premises had been closed.

30. The landlord in an attempt to evict the tenant refused to receive rent and proceeded to issue defective notices for termination of tenancy in the pendency of this reference which offends section 4 (2) of Cap. 301. It is clear that the landlord is hellbent to evict the tenant without following the law and the tenant deserves protection.

31. The landlord submits that granting the orders sought amounts to interfering with the parties contract. I have looked at the contract but the same does not oust the jurisdiction of courts or this Tribunal. The tenancy being a controlled one falls within this Tribunals jurisdiction and I am entitled to issue the orders sought under section 12 (4) of Cap. 301, Laws of Kenya.

32. As the issues raised in the complaint relates to the same matters canvassed in this application, the ruling herein shall apply to the reference.

33. Costs of any action, follows the event unless for good reasons otherwise ordered. In exercise of my discretion in that regard, I shall award the costs to the tenant.

34. In conclusion, the orders that commend to me are:-

(i) The landlord and/or his servants, employees agents or any other person is prohibited and/or restrained from unlawfully interfering in any way with the tenant’s quiet possession and enjoyment of the suit premises situate on plot no. 14A- Kamutaini, Kingeero, Kiambu County.

(ii) The landlord be and is hereby ordered to allow the tenant together with his customers use of the toilets erected on the suit premises.

(iii) The OCS Kingeero Police Station to enforce compliance with this order.

(iv) The tenant to pay all or any arrears of rent in respect of the suit premises to the landlord within the next Thirty (30) days hereof.

(v) Costs of Kshs.10,000/- awarded to the tenant to be defrayed against the rent account if not paid by the landlord in the next Thirty (30) days hereof.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF APRIL 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Soita for the Landlord/Respondent

No appearance for the Tenant