[2021] KEBPRT 461 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 284 OF 2020 (NAIROBI)

MOHAMED SAMIR ASGAR..............................TENANT/APPLICANT

VERSUS

MUKTAGAUIR PATEL.............................LANDLORD/RESPONDENT

RULING

PARTIES AND THEIR REPRESENTATIVE

1. The Tenant/Applicant, Mohammed Samir Asgar rented shop space on property situated on Land Reference 209/33/6 4th Avenue Parklands, Nairobi for business (hereinafter referred to as the “Tenant”)

2. Learned Counsel Nyasani E.N. & Co. Advocates represent the Tenant. (Email:nyasaniadvocate@gmail.com)

3. The Respondent Muktagauir Patel is the registered owner and Landlord of the suit premises rented out to the Tenant. (hereinafter referred to as the “Landlord”)

4. Learned Counsel Kisilu Wandati & Co. Advocates represent the Landlord (Email:info@kwc.co.ke,gwandati@kwc.co.ke).

THE DISPUTE BACKGROUND

5. On 9th March, 2020 the Tenant moved this Court under a Certificate for orders of injunction restraining the Landlord from interfering with his quiet possession and from attaching and selling his property.

6. On 10th, March 2020 the Tribunal gave orders in favour of the Tenant restraining the Landlord from interfering with his quiet possession and attaching or selling the property of the Tenant

7. On 8th February 2021 the Landlord filed an application under Certificate for this Court to stay the Orders dated 10th March 2020 and an injunctive order compelling the Tenant to pay rent arrears as at January 2021 amounting to Kshs 1,950,000.

8. On 8th February 2021, the Court gave orders for the application dated 5th February 2021 to served and set a hearing date for the Application for 2nd March 2021. When it came up Counsel for the Tenant was indisposed and the same were stood over to 22nd March 2021.

9. On 22nd March 2021 the Tenant responded to the Application dated 5th February 2021 through a Replying affidavit. On 22nd March 2021 the Court gave direction that the Applications dated 8th February 2021 and 5th March 2020 to be hear together by way of written submissions on 27th March 2021. The submissions filing was confirmed on 10th May 2021 and the matter set for ruling on 28th May 2021.

10. The Applications therefore coming for ruling are the Tenants application dated 5th February 2020 and the Landlord’s application dated 8th February 2021.

JURISDICTION

11. The Jurisdiction of this tribunal is not in dispute.

THE DISPUTE BACKGROUND

12. The Landlord and the Tenant entered into a tenancy agreement in June 2019 with regards to the suit premises for a period of 3 years at a consideration of Kshs. 150,000 per month.

13. It is the Tenant’s claim that on 4th January 2020 he found the suit premises locked by the Landlord and his property proclaimed by the Landlord for failure to pay rent for the month of December 2019.

14. It is the Landlord’s claim that through the Court’s order dated 10th March 2020, the Landlord has been prevented from evicting the Tenant from the suit premises, the Tenant is yet to settle his rent arrears for the month of December 2019 and that he has incurred loss of rental income amounting to Kshs. 1,950,000.

THE CLAIM AND DEFENCE

15. The Tenant filed an application dated 9th March, 2020 seeking orders restraining the Landlord jointly and severally by itself and/or through its agents, servants and/or employees or otherwise from proclamation, attachment and or sale of the Tenant’s tools of trade. The applicants also sought orders that the Tribunal restrains the Landlord jointly and severally by itself and/or through its agents, servants and/or employees otherwise from interfering with the quiet possession and occupation of the suit premises by the Tenant.

16. The Tenant’s case is that the Landlord proceeded to lock the suit premises on or about 4th January 2020 and proceed with distress for rent through Dalali Traders Auctioneers without prior notice to the Tenant.

17. The Landlord’s case is that on the Tenant has lost all interest in operating his business at the suit premises and has equally neglected to pay the outstanding rent arrears to enable him collect his assets and vacate the premises. The Landlord also contends that the order issued by this Court on 10th March 2020 has caused the Landlord to incur loss of rental income for a year including the month of December 2019when the Tenant fell into arrears cumulatively amounting to Kshs. 1,950,000.

MATTERS NOT IN DISPUTE

18. There is no dispute that there was a Tenant and Landlord relationship governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya. (Controlled Tenancy) and

LIST OF ISSUE FOR DETERMINATION

19. The parties raised certain issues for determination in their submissions and the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below:

a. Whether or not the Landlord unlawfully levied distress against the tenant?

b. whether or not the Landlord is entitled to the orders sought?

ANALYSIS AND FINDINGS

Whether or not the Landlord unlawfully levied distress against the tenant?

20. From the evidence adduced before this Court, it is clear that the Landlord did not comply with any of the procedures set out by the Distress For Rent Act Cap 293and the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act Cap 301. The Landlord unlawfully barricaded the entrance to the suit premises on the pretext of rental arrears without any prior notice or demand to the Tenant.

21. It is trite law that that unless a Tenant consents or agrees to give possession, the Landlord has to obtain all orders from a competent Court or Statutory tribunal to obtain an order for possession. As was stated in the case of Gusii Mwalimu Investment Company Ltd vs Mwalim Hotel Kisii Limited CA Civil Appeal no. 160 of 1995at page 10 of the decision.

22. In the absence of a court order I find that the Landlord acted in total disregard of the law when he unlawfully locked up the suit premises thereby depriving the Tenant of his possession. The Landlord’s action amounted to constructive eviction of the Tenant from the suit premises. Since the Landlord did not obtain a court order for possession, the Tenant’s eviction from the suit premises was illegal and unlawful.

23. The Landlord’s claim that the tenancy agreement gave him the authority to proceed to re-enter the premises and distress for rent without prior notice to the Tenant does not in itself render the actions of the Landlord lawful as the Court of Appeal in the case of Caledonia Supermarket Ltd vs Kenya National Examinations Council [2000]in order to terminate a controlled tenancy, one has to comply with section 4 of the Act.

24. I therefore find that the Landlord’s actions for distress for rent were unlawful on the grounds that;

i. He did not give the Tenant adequate notice; and

ii. The landlord failed to follow the procedures set out in statute.

Whether or not the Landlord is entitled to the orders sought?

25. On 10th March 2020 this court made orders restraining and/or prohibiting the Landlord, his authorized servants and/or agents from harassing, evicting, intimidating and/or in any other manner whatsoever interfering with the Tenant’s quiet possession and occupation of the suit premises.

26. From the Landlord’s submission dated 25th April 2021 it is clear that despite the orders given by this Court the Landlord went ahead to lock the premises and until this day the Tenant has not been able to access the suit premises.

27. The orders sought by the Landlord are equitable remedies and I am guided by the decision in Kyangaro v. Kenya Commercial Bank ltd & another [2004] 1KLR126as cited in Patrick Waweru Mwangi & Another v Housing Finance Co. of Kenya Ltd [2013] eKLRat page 145 where the Court stated;

“Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he has not done equity.”

28. Furthermore, as to the injunctive orders sought by the Landlord this Court is guided by the principles in Giella vs Cassman Brown and Co. Ltdwhere the Court set out the principles for interlocutory injunctions.

“The conditions for the grant of an interlocutory are now, I think well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury in which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

28. I find that the Landlord has not established the threshold set out in the above case to warrant this Court to grant him injunctive orders.

ORDERS

For the reasons given above I ORDER as follows that:

a. An injunction is hereby issued restraining the Landlord, jointly and severally by themselves and/or through its agents, servants and employees or otherwise from proclamation, attachment and/or sale of the Applicant’s tools of trade.

b. The Landlord is hereby ordered to grant the Tenant access to the suit premises and remove any form of obstructions for quiet enjoyment of the premises by the Tenant

c. Tenant to pay rent for the month of December 2019 only and thereafter continue to pay rent as per the Tenancy agreement upon re-entering the suit premises.

d. The upshot is that Tenant reference dated 9th March 2020 is spent. However, parties are hereinafter free to set it down for hearing in 60 days failure to which it stands marked as settled.

e. Landlord to pay Tenants cost awarded at Kshs.30,000/- which the Tenant can offset from the rent of December 2019.

HON. ANDREW MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING dated, signed and delivered virtually by Hon A. Muma this 11th June 2021in the presence of Bore holding brief for Nyasanifor the Tenant, Tenant and Landlady

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL