[2021] KEBPRT 216 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 19 OF 2021 (NYERI)

MIRIAM NYAWIRA MWANIKI........................................LANDLADY/APPLICANT

VERSUS

CYRUS WANJOHI KAMUNYA...........................................TENANT/RESPONDENT

RULING

1. Through a motion dated 18th February 2021, the Landlady approached this Tribunal seeking 5 reliefs some which are already spent by dint of the ex-parte orders given herein on 23rd February 2021.

2. The only prayers that remain outstanding are prayers 4 and 5 in which the Landlady is seeking that the Respondent/Tenant be restrained from altering the structures of the building in which his premises are situate within Nyeri Municipality and that a mandatory injunction do issue to compel him to restore the same to their original portion.

3. The application is supported by the Applicant’s affidavit sworn on 18th February 2021 and annextures thereto.

4. A bundle of photographs showing alterations being done to the suit premises are attached and marked “MNM2” together with a demand letter dated 13th January 2021 marked “MNM3”.

5. It is the Applicant’s case that the alterations are being extended to public land with a view to the Respondent increasing the space occupied thereby interfering with the a fixtures of the premises and that he had demolished a wall separating the stall let to him.

6. The Respondent is alleged to have relocated a bathroom and a toilet to create more room for his restaurant without the Applicant’s authority as well as that of the physical planning authority thereby committing an offence under the Physical Planning Act.

7. The Respondent by so doing is said to have usurped the duties of the Applicant in respect of repairing the roof, main walls and main drains outlined under Cap. 301 Laws of Kenya.

8. The application is opposed through a replying affidavit sworn by the Respondent/Tenant on 10th March 2021.

9. It is the Respondent’s case that he has been a tenant in the suit premises for the last 33 years (since 1988). He currently pays Kshs.20,000/- as monthly rent and the rent account is in credit having paid rent for the whole year in advance.

10. According to the Respondent, all communication to the Landlord are done through the daughter one Sarah Njeri Mwaniki as the Applicant is elderly and has entrusted her said daughter to manage some of her affairs.

11. The building is said to be old having been constructed 50 years ago and has become dilapidated with a curving roof since 2014 which led to issuance of a closure notice dated 13th March 2014 by the Ministry of Health if several listed measures were not undertaken.

12. The Landlady refused to comply with the said notice as a result of which a fresh notice was issued by the County Government of Nyeri requiring reconstruction and repair of the premises marked “CK-2”.

13. The notice was brought to the attention of the Landlord vide annextures “CK-3” pursuant to which the Landlady/Applicant gave consent to the tenant to effect the said renovations vide annexture “CK-4”.

14. There was a subsequent visit by the public health officials who issued a further demand letter dated 9th October 2020 which was forwarded to the Applicant vide a letter dated 15th October 2020.

15. It is the Respondent’s case that on 18th December 2020, the premises were closed by the public Health department vide annexture “CK-6”. As a result the Tenant had to carry out the repairs which took 3 weeks.

16. The Tenant thereafter applied for lifting of the closure notice and upon inspection, the same was lifted as per annexture “CK-7”.

17. Having already paid rent for the whole year, it is the Respondent’s case that the Landlord is not entitled to terminate his tenancy.

18. The Respondent contends that relocation of toilets was done in 1995 by the Applicant’s late husband and all that was done in 2021 was mere refurbishment.

19. The Respondent deposes that he did not alter the premises and/or its structures but only improved the building’s aesthetics inorder to attract more customers and comply with Ministry of Health requirements.

20. The Applicant swore a further affidavit on 2nd June 2021 wherein she states that the Respondent and her daughter have chosen to humiliate her by acting as if she was not alive.

21. She denies ever receiving any rent since the death of her husband in 1989 despite the Respondent being aware that she was the legal representative of her late husband.

22. She denies having appointed “Jesma investments” as her agent for purposes of rent collection and that the Tenant acts as if he was the owner of the suit premises.

23. The Applicant deposes that any rent payments made without her authority amounts to no payment and that she has a right to terminate the tenancy.

24. She further deposes that she fears that her daughter may have purported to sell the suit property to the Tenant/Respondent.

25. On 21st April 2021, the application was ordered to proceed by way of written submissions but only the Applicant’s counsel complied.

26. From the foregoing pleadings and submissions, the issues that arise for determination are:-

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

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

27. The Applicant is seeking for a mandatory injunction in prayer 5 of the application and a temporary injunction in prayer 4.

28. The principles upon which the courts act in granting such orders are well established and settled.

29. For a temporary injunction to issue, the court considers the three (3) principles set out in the case of Giella – vs- Cassman Brown & Co. Limited (1973) EA 358to wit:-

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

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

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

30. In regard to issuance of a mandatory injunction, I wish to seek guidance from the court of Appeal decision in Kenya Breweries Limited & Another – vs- Washington O. Okeyo (2002) eKLR at page 2/3 wherein the court cited the treatise “Halsburry’s Laws of England 4th Edn paragraph 948 as follows:-

“A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied or where the defendant had attempted to steal a match on the plaintiff.

Moreover, before granting a mandatory interlocutory injunction, the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction”

31. I have considered the pleadings as well as submissions made in support of the application and make the following findings:-

(i) The Respondent is a Tenant in the premises owned by the Applicant.

(ii) The Respondent has all along been dealing with the Applicant’s daughter known as Sarah Njeri Mwaniki.

(iii) The Applicant has not exhibited any documentary evidence that she has ever demanded for rent payment directly to her ever since 1989 when her husband died and she is estopped from disowning the arrangement entered into by the Respondent and her said daughter in regard to rent payment.

The notices issued upon the Tenant by the Public Health Department and the allegation that the Landlord failed to comply therewith, has not been disputed neither has the consent given to him on 1st August 2020.

(iv) The closure of the business premises necessitated the renovations carried out by the Tenant and there is no professional report showing that the same interfered with the structural foundation of the building.

(v) The alleged construction upon public land has not been proved as the County Government of Nyeri lifted the closure notice by a letter dated 19/1/2021 without raising the issue of encroachment.

(vi) On the 4th March 2021, the said County Government issued a Single Business Permit to the Respondent despite the alleged encroachment into public land.

(vii) No evidence has been tendered from the physical planning department of the County Government on the alleged encroachment and changes to the building design and structure to warrant an order for demolition thereof.

(viii) There is no evidence that the Respondent claims ownership of the suit plot or the building constructed thereon to warrant the Landlord’s fears of purported sale thereof.

(ix) The allegations made against the Respondent have been directly controverted through the replying affidavit filed in this matter.

32. The upshot of my foregoing findings is that the Applicant has failed to bring herself within the principles for the grant of the orders sought herein and I proceed to consequently dismiss the application with costs to the Respondent.

It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 28TH DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling read in the absence of the parties.