[2025] KEBPRT 25 (KLR)

Muriithi t/a Purple Bar Restaurant v Karanja & another (Tribunal Case E008 of 2024) [2025] KEBPRT 25 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 25 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E008 of 2024

N Wahome, Chair & Joyce Murigi, Member

January 16, 2025

Between

Eric M Muriithi T/A Purple Bar Restaurant

Tenant

and

Alex Nyaga Karanja

1st Landlord

Petfriend Auctioneers

2nd Landlord

Ruling

1. This suit was originated by the Reference dated 30. 8.2024. The same grieved that;-“The Landlord/Respondent has purported to terminate the respective tenancy herein (in which the tenant is protected) without following the prescribed procedure under Cap 301 of the Laws of Kenya.”

2. The Tenant/Applicant therefore sought for the following relief;-“We pray, that, the aforesaid notice and action be declared illegal and the Landlord/Respondent by himself, his servants and/or agents be restrained from interfering with the Applicant’s quiet possession of the suit premises or evicting him and that he bears the costs of this Complaint.”

3. Accompanying the Reference was a notice of motion Application of the even date. It sought for the following reliefs;-i.That this Application be certified as urgent and service be dispensed with in the first instance.ii.That the Tribunal declares the tenancy as controlled.iii.That the Landlord/Respondent be temporarily prohibited and restrained from unlawfully evicting the Tenant pending the hearing and determination of this Application.iv.That the Landlord/Respondent be temporarily prohibited and restrained from unlawfully interfering with the Tenant’s/Applicant’s use and occupation of the premises pending the hearing and determination of this Application.v.That the Landlord/Respondent be compelled to restore water and electricity supply in the premises pending the hearing and determination of this case.vi.That the Landlord/Respondent be compelled to accept rent at the set rate of Kshs. 40,000/= per month pending the hearing and determination of this case or in the alternative, the Tenant be allowed to pay the said rent to the Tribunal.vii.That the costs of the Application be provided for.

4. The Tenant/Applicant further filed the supplementary affidavit sworn on the 28. 10. 2024 and the written submissions dated 28. 10. 2024. The case for the Tenant is that;-i.His tenancy with the Respondent was a controlled one as envisaged by Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) hereinafter referred to as “the Act.”ii.The Landlord had without any reason and in breach of the law interfered with water and electricity connection to the demised premises.iii.The Respondent had interfered with his access to the demised premises and was further charging increased rent at Kshs. 50,000/= and penalties.iv.The notice of termination of tenancy was not in compliance with the Act and was therefore illegal.v.He only owed the Landlord Kshs. 107,023/= and not the amount of over Kshs. 500,000/= claimed by the Landlord.

5. The Tenant also relied on the case of; Aikman & Others v Muchoki & Others [1982] eKLR and the case of; Jasbir Singh Rai & 3 Others v Jarlochan Singh Rai & 4 Others, Petition No. 4 of 2012 [2014] eKLR in support of his case.

6. On his part, the Landlord filed the Replying affidavit sworn on the 16. 9.2024, the Further Affidavit sworn on the 20. 9.2024, the Supplementary Affidavit sworn on the 26. 11. 2024 and the written submissions dated 26. 10. 2024. The case for the Landlord is that;-i.His relationship with the Tenant did not constitute a controlled tenancy.ii.Had not disconnected power nor water from the demised premises and had also not denied the Tenant access thereof.iii.The Tenant had by annexures marked “ANK 12 and 14” admitted to the rent arrears claimed by the Landlord and even proposed the mode of settlement.iv.That the rent account offered by the Tenant was for a different premises and was merely intended to confuse the court.v.Had issued a termination notice/eviction notice against the Tenant dated 8. 8.2024- Annexure “ANK-1”.vi.He had the right to levy distress for recovery of rent in arrears and also to have the Tenant evicted from the premises.vii.The Tenant pursuant to their communication vide whatsapp, the draft lease agreement and also from the rent account statement was initially paying rent at Kshs. 40,000/= and which later by consent of the parties escalated to Kshs. 50,000/= and which the Tenant had been paying.

7. The Landlord in his written submissions in support of his case also relied on the case of; Samuel Kipkorir Ngeno & Another v Local Authorities Pension Trust (Registered Trustees) & Another [2013] eKLR and the case of Giella v Cassman Brown & Co. Ltd [1973] EA.

8. We have perused the parties respective pleadings, documents, submissions and the case law thereof and are of the view that the issues for determination in this matter are the following;-1:Whether the Tenant/Applicant’s Application dated 30. 8.2024 has merit.2:Whether the Landlord is entitled to levy distress in recovery of the rents in arrears.3:Whether the Landlord’s notice of termination of tenancy and/or eviction is lawful.4:Who should bear the costs of the suit.

9. Before we address the identified issues, it is worthwhile to appreciate that a determination of the Application herein will also settle the Reference of the same date. Indeed, a settlement of the Application will leave nothing for determination in the said Reference dated 30. 8.2024.

Issue No. 1: Whether the Tenant/Applicant’s Application dated 30. 8.2024 has merit. 10. At the time the impugned notice of termination/eviction was issued by the Landlord to the Tenant, the later was alleged to owe the former Kshs. 370,840/= in rent arrears. This was as at the 8. 8.2024. On his part, the Tenant claimed to only have owed the Landlord Kshs. 109,023/=.

11. However, the Landlord through annexures “ANK-12 and 15” demonstrated admission by the Tenant of the claimed rent arrears. The Tenant further made elaborate proposals on settlement of the rent arrears. The Tenant dispute on the rent payable and the rent arrears thereof only sufficed after he was served with the notice of termination dated 8. 8.2024.

12. In any event, even in his own pleadings, the Tenant still admits owing rent arrears of Kshs. 109,023/= which is rent arrears of more than 2 months. In this contention, the Tenant relied on rental agreement for another premises also owned by the Landlord. This can be seen from the Tenant’s annexure “EMM-1” as attached to his Supplementary affidavit sworn on the 28. 10. 2024 and to annexures “ANK-1 and 2” in the Landlord’s Supplementary Affidavit sworn on the 26. 11. 2024.

13. From that pleading by the Tenant, it is not clear whether he made a genuine mistake in attaching the foreign rental account or it was deliberately crafted to mislead this court. However, the obvious reality is that the Tenant was not able to contradict the Landlord’s account on the rent arrears owed to him by the Tenant.

14. In view of the above, it is settled that a Tenant just requires to be in rent arrears for the Landlord to accrue rights to levy distress in recovery of such rents. The Distress for Rent Act at Section 3(1) thereof provides that;-“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the common law of England in a similar case.”

15. Indeed, the High Courts of Kenya have on several occasions spoken on this issue. In the case of; John Nthumbi Kamwithi v Asha Akumu Juma [2018] eKLR, at the High Court at Embu, it was held that;-“I find that the Appellant had no obligation to seek permission from the Tribunal to levy distress. The fact that the Tenancy is controlled does not mean that the Landlord applies to the Tribunal to levy distress. Distress is a right the Landlord is entitled to for recovery of rent.”

16. In appreciating this legal disposition, we on the 14. 1.2025 allowed the Landlord’s Application dated 6. 1.2025 allowing him to exercise his right of levy of distress in recovery of rent arrears as accrued to him by virtue of the provisions of Section 3(1) of the Distress for rent Cap 293 and from legal precedents as provided by the courts.

17. Having found that the Tenant was in such huge arrears of rent, we are not persuaded that there can be any merit in his Application dated 30. 8.2024. The Tenant seeks for equitable reliefs when he does not seem equitable in meeting his cardinal obligations as a Tenant with the main one being payment of rent as the same falls due.

18. In the case of; Samuel Kipkorir Ngeno v Irene Wamuyu Omung’ala & Another [2013] eKLR, the High Court sitting at Nairobi held that;-“The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A Tenant who is in huge arrears of rent is undeserving of the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due.”

19. The Tenant had also claimed that the Landlord had disconnected power & water from the demised premises, that he had also denied him free access to the same. This was denied by the Landlord who categorically stated that the power & water at the building served many other tenants in the same building and it would not be possible for him to take such an action. He also denied that he had refused the Tenant free access to the premises.

20. On this, we would easily believe the Landlord. We would deduce this from the lengthy discourses between the parties on the rent arrears and the proposals for payment of the same. In all those correspondences, the Tenant is not seen raising any complaint on the purported disconnection of power & water and of being denied free access to the demised premises.

21. The Tenant has also claimed that the rent payable on the demised premises was Kshs. 40,000/= per month and not Kshs. 50,000/= as charged by the Landlord. He however in annexures “12 and 15” admitted to owing the rents in arrears which were calculated at the rates of Kshs. 50,000/= per month. The Tenant also made a proposal on how to settle the same.

22. This is fortified by the Landlord’s Annexure “ANK-8” whereof at clause (1) of the draft Lease Agreement duly executed by the Tenant, the rent payable per month is categorically stated as Kshs. 50,000/=. The Tenant’s contestations on the same have therefore no foundation in fact nor law.

23. We would therefore dispose the first issue by determining that the Tenant’s Application dated 30. 8.2024 is without merit and proceed to dismiss the same together with the Reference of the even date.

Issue No. 2: Whether the Landlord is entitled to levy distress in recovery of the rents in arrears. 24. We have already answered this question in the positive and further affirm our grant of the orders sought by the Landlord in the Application dated 6. 1.2025. We therefore resolve that issue in favour of the Landlord.

Issue No. 3: Whether the Landlord’s notice of termination of tenancy and/or eviction was lawful. 25. The said notice is dated 8. 8.2024 and was to take effect on the same date of 8. 8.2024. It was plainly in breach of Section 4(4) of the Act which provides as follows;-“No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof of the receiving party, as shall be specified therein.”

26. The one-day notice did not therefore meet the threshold envisaged by Section 4(4) of the Act and is therefore unlawful and of no legal effect nor consequence. In this, we rely on the locus classicus case of; Fredrick Mutua Mulinge t/a Kitui Uniform v Kitui Teachers Housing Co-operative Society Ltd [2017] eKLR where the High Court held that;-“it is clear from the foregoing authorities that the tenancy notice dated 38. 6.2014 was null and void for failing to give the Appellant two months notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1. 7.2014 through which the Respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act.”

27. It then follows that, the notice of termination of tenancy and/or eviction dated 8. 8.2024 is unlawful.

Issue No. 4: Who should bear the costs of the suit. 28. Costs follow the event as is dictated by Section 27 of the Civil Procedure Act. We find no plausible reason to depart from this conventional wisdom. We shall therefore award costs to the Landlord.

29. In conclusion, the orders that do commend to us are the following;-1. That the Tenant/Applicant’s Application and Reference both dated 30. 8.2024 are dismissed.2. That the Landlord is at liberty to levy distress in recovery of all the rents in arrears at the Tenant’s expense.3. That the Landlord’s notice of termination of tenancy and/or eviction is declared unlawful and of no legal effect nor consequence.4. That the Tenant shall pay costs to the Landlord assessed at Kshs. 30,000/=.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF JANUARY, 2025. HON. NDEGWA WAHOME - PANEL CHAIRPERSONHON. JOYCE MURIGI - MEMBERBUSINESS PREMISES RENT TRIBUNAL