[2021] KEBPRT 176 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 909 OF 2020 (NAIROBI)

MOHAMED NUUR ABDULLAHI............................................................TENANT/APPLICANT

VERSUS

AL-SAWAW MOHAMMED ABDULQADER A HASSAN...........LANDLORD/RESPONDENT

RULING

1. The Tenant’s/Applicant’s application dated 18th November 2020 seeks restraining orders against the Respondent/Landlord restraining him from interfering with the Tenant’s possession of shops Nos A06, A07, A014 and A015 on the ground floor of the building known as Sawa Towers formerly All Haqq Plaza on LR No 36/VII/451 Eastleigh Nairobi pending the hearing and disposal of the complaint.

2. The application also seeks an order directing the Tenant to deposit the monthly rent at the Tribunal in the event the Landlord refuses to collect the said rent from the Tribunal. The assistance of the OCS Pangani Police Station has also been sought in the enforcement of the orders.

3. The grounds upon which the application has been brought have been set out on the face of the application. The application is supported by the affidavit of Mohammed Nuur Abdullahi the Tenant herein and which affidavit I summarize as follows;

a. That the Applicant is a protected Tenant paying to the Landlord a monthly rent of Kshs 10,000/- per shop.

b. That the premises previously belonged to Borah Developers Ltd who sold it to the Respondent.

c. That by his letter of 26th August 2020, the Landlord issued the Tenant with a three months illegal notice to vacate from the suit premises.

d. That the Landlord has increased the rent from Kshs 10,000/- to 30,000/- and Kshs 50,000/- respectively.

e. That the Landlord is not owed any rent arrears and his eviction notice has ulterior motives.

4. The application is opposed by the Respondent’s replying affidavit sworn on 22nd October 2021and whose contents I summarize as follows;

a. That the Respondent is the registered proprietor of the suit premises having purchased the same from Borah Developers Ltd.

b. That upon purchase, the Respondent informed the Tenants through his advocates that they were to pay rent to the Respondent.

c. That the Respondent does not know the Tenant and he has never entered into any tenancy agreement with him.

d. That the Respondent has discovered that his bonafide Tenants have illegally entered into sub-tenancies and the Applicant is such one of the illegal subtenants.

e. That the Applicant being an illegal subtenant, he is not entitled to quiet and peaceful possession of the suit premises.

f. That the interim orders were obtained by material non disclosure of the illegal status of the Tenant/Applicant.

g. That the Respondent confirms that he issued the notice dated 26th August 2020, the said notice is legal and in accordance with the tenancy agreement between the Landlord and his Tenants.

h. That the Respondent denies threatening to increase the rent.

5. The Tenant’s supplementary (sic) affidavit in response to the Landlord’s replying affidavit sworn on 22nd January 2021 may be summarized as follows;

a. That the Tenant has been paying rent directly to the Landlord and there are no rent arrears due (payment receipts have been annexed and marked as “MNA – 1).

b. That the Tenant was a Tenant of the previous owners of the suit premises and continues to be a Tenant of the new owner (Respondent) who took over the premises together with the Tenants he found there.

c. That Farah Sheikh Abdi held the suit premises in trust for the Tenant while the Tenant was abroad but he has since transferred back the shops to the Tenant.

d. That the Tenant is not a subtenant.

e. That the orders of the Tribunal issued on 1st December 2020 were granted with full disclosure of all the relevant material facts.

6. The Tenant’s/Applicant’s application dated 12th January 2021 sought to enjoin (sic) Abdi Alki, Dek Hersi, Mohamed Ali Ahmed) and Abdirahman Osman as Respondents and orders restraining them from interfering in any manner with the Tenant’s quiet possession of the suit premises. The application also seeks orders of eviction against the intended Respondents from the suit premises and police assistance from the OCS Pangani Police Station.

7. The grounds upon which the application is brought are set out on the face of the application. The affidavit in support of the application may be summarized as follows;

a. That on 1st December 2020, the Tenant obtained orders from the Tribunal restraining the Landlord and/or her agents from interfering with the Tenant’s quiet possession of the suit premises.

b. That the Landlord went ahead and leased the premises to the intended Respondents despite there being a lawful court order.

c. That the Landlord has, by leasing out the premises to the intended Respondents, locked out the Tenant from the suit premises occasioning the Tenant loss of business.

d. That it is in the interests of justice that the intended Respondents he joined to these proceedings as Respondents.

8. The application dated 12th January 2021is opposed. The Landlord has filed a replying affidavit sworn by himself on 8th February 2021 and which I summarize as follows;

a. That the Landlord has not leased his shops to the persons named in the application.

b. That the tenancy agreements for shop Nos A6, A7, A14 and A15 (the suit premises) have been annexed to the affidavit and marked as ASMAH – 1. They were signed before the suit herein was instituted.

c. That the Landlord does not collect the rent directly, a task he has delegated to his son, Mohamed Hassan.

d. That the Landlord does not understand the Tenant’s claim that he sent him Kshs 40,000/- in November and December.

e.That none of the shops allegedly rented by the Tenant goes for Kshs 40,000/-.

f. That the Landlord maintains that the Tenant is a total stranger to him.

9. The Landlord’s application dated 22nd January 2021 seeks orders that the Tenant gives security for costs in the sum of Kshs 500,000/- or any other sum the Tribunal deems fit and that this suit be struck out for failure to provide such security within the prescribed period.

10. The application is supported by the affidavit sworn by the Landlord/Applicant on 22nd January 2021 and which I summarize as follows;

a. That the Respondent/landlord is the proprietor of the suit premises.

b. That the Tenant is unknown to the Landlord and the Landlord is apprehensive that if this suit is eventually dismissed with costs, he wouldn’t know where to find the Tenant and would thus be unable to recover his costs.

c. That the Tenant is worried about the genuineness of this claim as two previous cases against him have been withdrawn following an inquiry into the authenticity of the deponent’s signatures ie case No 855 of 2020 and 858 of 2020.

d. That it is just that the Defendant be compelled to deposit security for costs.

11. The application dated 22nd January 2021 is opposed. The Tenant/Applicant has filed an affidavit sworn by himself on 29th January 2021 and which I proceed to summarize as follows;

a. That the Tenant was previously a Tenant of Borah Developers Ltd and has been on the suit premises for over ten years.

b. That while the Tenant was out of the country, Farah Sheikh Abdi held the suit premises in trust for the Tenant/Applicant.

c. That the Applicant is a Tenant of the Respondent/Landlord paying rent to the said Landlord promptly and without fail.

d. That the withdrawn cases have no effect on the Tenant’s present case.

e.That there is no provision for the giving of security for costs under Cap 301 of the Laws of Kenya.

f. That the Tenant is a protected Tenant.

g. That the motion dated 22nd January 2021 is frivolous, vexatious and an abuse of the Tribunal’s precious judicial time.

12. The parties have filed written submissions which I have considered in this ruling. From the submissions filed and the summary of the parties’ cases in their applications, the issues that arise for consideration are in my humble view the following;

a. Whether the Tenant is entitled to the orders sought in his application dated 18th October 2020.

b. Whether the Tenant is entitled to the orders sought in his application dated 12th January 2021.

c. Whether the Landlord is entitled to the orders sought in his application dated 22nd January 2021.

13. On issue (a)

a. The Tenant’s application dated 18th October 2020 is seeking orders which are injunctive in nature against the Landlord/Respondent. It is an interlocutory application pending the hearing of the Tenant’s complaint.

b. The Tenant in his pleadings has explained how he became a Tenant of the Applicant. It is the Tenant’s case that he was a Tenant of the previous owners of the suit premises, Borah Developers Ltd. It is further his statement that when the current Landlord took over the premises, he took it together with the Tenants that he found there.

c. The Tenant has further stated that he pays rent directly to the Landlord. the Landlord on his part has denied knowledge of the Tenant and further denies receiving any rent from the Tenant as he had delegated the task of collecting rent to his son. In reaction to this, the Tenant/Applicant has annexed payment receipts some in the name of Borah Developers Ltd and others in the name of the Landlord/Respondent.

d. At this interlocutory stage, I am not required to make any conclusive findings on whether or not the Respondent actually received rent from the Tenant or indeed make any other conclusive findings. I will have to leave that to the full hearing. The Tenant for now is in possession of the premises and has fully explained how he came to be in the premises.

e. The principles for granting an interlocutory injunction are that;

i. The Applicant must show a prima facie case with a probability of success.

ii. An interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages.

iii. If the court is in doubt, it will decide the application on a balance of convenience (see the Giella Vs Cassman Brown decision).

iv. In the case of Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others, Civil Appeal No. 39 of 2002, Mombasa, the court defined a prima facie case as follows;

“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 property directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation from the latter.”

f. Has the Applicant demonstrated such a right infringed by the Respondent?

i. From the pleadings filed by the Tenant, it is alleged that the Respondent has issued the Tenant with a notice of termination of tenancy dated 26th August 2020. The Landlord in his pleadings admit instructing his advocates to issue the said notice. The contention of the Applicant/Tenant is that the said notice is illegal and does not conform to the provisions of section 4 of Cap 301 of the Laws of Kenya. Indeed, this forms one of the limbs of the Tenant’s complaints in his reference dated 18th November 2020.

ii. On the face of it, it is not an idle complaint. This is even more so as the Tribunal had earlier made a finding that the Tenant herein is a protected Tenant. The Tenant has further complained that the Landlord’s attempt to lease out the suit premises during the pendency of the court orders issued on 1st December 2020 is illegal, he has also protested the alleged increment of rent by the Landlord. All these protestations and allegations certainly require an explanation from the Landlord. it would be prudent to preserve the status quo pending the final determination of these issues.

iii. I hesitate to make conclusive findings at this interlocutory stage as the Tenant’s submissions invite me to. Suffice it to say that on the material placed before me and as set out above, the Tenant has established that he has a prima facie case with a probability of success.

g. The Tenant has demonstrated that he is a Tenant to the Landlord. He has shown evidence of his payment of rent. He is in possession of the suit premises. In these circumstances, if the orders sought are not granted, I find that the Applicant’s business would be shut down and he would be exposed to injury which would not be adequately compensated by an award of damages.

h. The balance of convenience tilts in favour of the Tenant. Why? The Tenant is in possession of the suit premises and he has demonstrated that he is paying rent for the same. In deed the Landlord does not lay any claim of unpaid rent against the Tenant. In these circumstances, and as stated earlier, it would be safer to safeguard the status quo pending the determination of the complaint herein.

14. In conclusion, I do find merit in the Tenant’s/Applicant’s notice of motion dated 18th November 2020 and hereby grant orders 2, 3, 5 and 7 of the said motion.

15. On issue (b);

a. The Tenant sought by his application dated 12th January 2021, to join in these proceedings the intended Respondents named therein. He has also sought orders of injunction against the intended Respondents and order of eviction against them. The Tenant states that the Landlord leased out the suit premises to the intended Respondents when there was already in existence court orders issued on 1st December 2020 barring the Landlord from interfering with the tenancy over the suit premises.

b. The Landlord’s contention is that the intended Respondents are not his Tenants and he has indeed annexed leases on whom he recognizes as the proper Tenants. I think it is for the intended Tenants to respond to the allegations brought forth by the Tenant/Applicant.

c. In the circumstances of this case, I do find that the intended Respondents are necessary parties. I will therefore allow the Tenant’s application only in terms of prayer 2 of the said application.

16. On Issue (c)

a. The Landlord’s application dated 22nd January 2021 seeks orders that the Tenant gives security for costs in the sum of Kshs 500,000/- or any other sum that the Tribunal may deem fit. The application further seeks an order striking out this suit in the event of failure by the Tenant to abide.

b. The Landlord’s main concern is that since the Tenant/Applicant is unknown to him, in the event that the Applicant’s case is dismissed, the Landlord will be unable to recover his costs. The Landlord is also worried because previous claims against him have been withdrawn as soon as the propriety of the deponent’s signatures was delved into. The Tenant is of the view that the cases which were withdrawn do not concern this case and that further he has been a Tenant in the suit premises for over ten years. The Tenant further states that there is no provision for the giving of security for costs under Cap 301 of the laws of Kenya.

c. An order for security for costs is a discretionary one as per the provisions of Order 26 rule 1 of the Civil Procedure Rules. It confers discretion on the court, which is recognition that there may be many cases where a call for security for costs may be refused. The discretion is, however to be exercised reasonably and judicially by taking absolute reference to the circumstances of each case.

d. Such matters as follows may be considered;

i. Absence of known assets within the jurisdiction of the court, absence of an office within jurisdiction of court, insolvency or inability to pay costs.

ii. The general financial standing or wellness of the Plaintiff.

iii. The bonafides of the Plaintiff’s claim or;

iv. Any other relevant circumstance of conduct of the Plaintiff or the Defendant, the list is not event exhaustive.

(See the case of Mombasa HCC No 10 of 2014 PLC Vs Yussuf Shah Mohamed Omar and Shadoust Yussuf).

e. The court in the above case also cited the case of Gulf Engineering (East Africa) Ltd Vs Amrik Singh Kalgi at page 281 quoting the dictum of Lord Denning Mr and Sir Lindsay Parkinson & Co Ltd [1973] 2KLR 632 at page 284, quoting Maughan L.J in GILL all-weather Bodies Ltd Vs ALL Weather Motor Bodies Ltd where it is stated;

“…if there is a reason to believe that the company cannot pay costs, then security may be ordered but not must be ordered. Some of the matters which the court might take into account such as whether the company’s claim isbonafide and not a sham and whether the company has reasonably good prospects of success. Again, it will consider whether there is an admission by the Defendant on the pleadings or elsewhere that money is due.

The court might also consider whether the application for security was being used oppressively so as to stifle a genuine claim. It would also consider whether the company’s want of means has been brought about by any conduct of the Defendants such as delay in payment or delay in doing their part of the work.”

f. The Judge in PLC Case (supra) went on to state at paragraph 37;

“In most cases, the Applicant ought to establish that the Respondent if unsuccessful in the proceedings would be unable to pay costs due to poverty. It is not enough to allege that the Respondent will be unable to pay costs in the event she is unsuccessful. The same must be proven.

g. The Landlord’s only reason for seeking the orders for security of costs is that the Tenant is not his Tenant. The Tenant is a stranger to him. But is this the case? I think not. The Tenant is in the suit premises, he states he has been there for over ten years, and that the Landlord found him there when he took over the premises from Borah Developers Ltd who were the previous owners. The allegation that the Tenant is unknown to the Tenant is therefore not true.

h. The Landlord in his application has not tendered any evidence to prove that the Tenant would, in the event of loosing his case be unable to pay the costs that would be adjudged due from him. Indeed, the Landlord has not even alluded to the inability of the Tenant to pay any costs. It is not enough to merely pray for an order for security for costs, the Landlord is under a duty to demonstrate the Tenant’s inability. I also find that the Tenant’s claim is not frivolous and or vexations. I have already found elsewhere in this ruling that the Tenant is a protected Tenant and he has a prima facie case against the Landlord/Respondent.

17. There is therefore not demonstrated a reasonable cause why the court should exercise its discretion in favour of the Landlord and I decline the Landlord’s application dated 22nd January 2021.

18. The upshot of the above is therefore as follows;

a. That prayers 2, 3, 5 and 7 of the Tenant’s application dated 18th November 2020 are granted.

b. That prayer 2 of the Tenant’s application dated 12th January 2021 is granted.

c. That the Landlord’s application dated 22nd January 2021 is dismissed with costs to the Tenant.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 1stday ofNovember 2021 in the presence of Lakicha for the Tenantsand Miss Tanuifor theLandlord.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL