[2021] KEBPRT 337 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 139 OF 2021 ( NAIROBI)

NANCY WANJERI NJOROGE...................................................APPLICANT

VERSUS

SHAQUR -UL – HAQ......................................................1ST RESPONDENT

DALALI TRADERS AUCTIONEERS........................2ND RESPONDENT

AND

JOHN GITAU NGUMI..........................................INTERESTED PARTY

RULING

1. The application before me is the Applicant/ tenant’s notice of motion brought by way of certificate of urgency seeking for various orders. The gist of the said application is that the 1st Respondent Landlord had instructed the 2nd Respondent to levy distress against the Applicant.

2. The 2nd Respondent seized with the instructions proceeded to proclaim the Applicant’s goods. Aggrieved, the Applicant filed the present application and reference seeking for protection in the form of injunctive orders. The application was set down for inter partes hearing on 26th February, 2021.

3. The interested party filed a separate application under certificate dated 25th February, 2021. The interested party prayed to be enjoined in the present reference by dint of being a sub tenant on the let premises. The parties compromised the application through the consent entered and adopted on 26th February 2021 allowing the said application

4. The parties agreed to canvass the application by way of written submissions. It is common ground that there was a tenant and landlord relationship between the parties hereto. There is also no dispute that the rent was in arrears as the Applicant has in her pleadings been evasive on the issue of the rent amounts due. The 1st Respondent has attached demand letters and reminders indicating the rent arrears owing. The Applicant did not challenge this but has rather anchored her argument on the fact that the distress for rent was levied without following the due process.

5. If we were to give the Applicant the benefit of doubt that the amount owing is disputed as per her averments in the supporting affidavit, then she had a duty to inform the Tribunal on what she believed was the correct figure. Further the question of the relationship between the amount owing and distress for rent was dealt with in the case of JK Chatrath and another vs. Shah Cedar Mart (1967) EA 93. In that case, the tenant had admitted owing one month’s rent before distress was levied. The former Court of Appeal for Eastern Africa stated that the position in England, which applied to Kenya then as now, by virtue of section 3 of the Distress for Rent Act, was that a landlord was entitled to exercise his right to distrain for rent if any rent was in arrears and the distress did not become illegal merely because it was carried out for more rent than was due.

6. The next question should be whether the 1st Respondent embarked on the exercise in a manner that was contrary to the law on Distress. The Applicant says that he did for he had no court order to do so. The law is clear, the tenancy in question is a protected tenancy, and an order from was therefore a legal requirement as implied under the provisions of Section 12 of Cap 301. The 1st Respondent has not tendered evidence to prove that he sought the leave of the Tribunal to levy distress.

7. Having dealt with the issue of the manner in which distress was levied, I will turn on to the application for temporary injunction. The application is for the equitable remedy of injunction. The principles upon which interlocutory injunctions are granted are notorious. They were stated in Giella vs. Cassman Brown & Co, Ltd (1973) EA 358. It should be established that the applicant has a prima facie case with probability of success, an injunction would not normally issue unless the applicant might otherwise suffer irreparable loss, and, when in in doubt, the court decides the matter on the balance of convenience.

8. With regard to the first limb of the principles in Giella vs. Cassman Brown & Co, Ltd, prima facie case with probability, As stated above, it would appear that on the issue as to whether the 1st Respondent commenced the process of levying distress without following the due process as he did not seek the leave of the Tribunal. The applicant would therefore succeed on this limb. Her victory however will be pyrrhic and short lived as she is in rent arrears which the same is not disputed. The Applicant has not made any prayers to be furnished with a statement of account by the 1st Respondent. I am not therefore satisfied that a prima facie case with probability of success has been established.

9. The second limb is the question of irreparable injury to the applicant. The Applicant has not explained how they stand to suffer irreparable damage. The closest explanation is that her business would not run smoothly. I am therefore inclined to agree with the Respondents’ submissions that the Applicant does not stand to suffer any irreparable harm.

10. The third limb is on the balance of convenience. According to Giella vs. Cassman Brown & Co, Ltd, this comes into play only where the court or tribunal is in doubt regarding the first two limbs. I have no doubt at all in my mind with the regard to the first two, and therefore I need not consider who, between the Applicant and the Respondents, the balance of convenience favours.

11. I will end this ruling by pointing out that the remedy sought in the instant application is equitable. Equity requires that whoever comes to a court of equity must do so with clean hands. It is also required that he who seeks equity must do equity. The Applicant herein is obliged under the written tenancy agreement between her and the 1st Respondent to pay rent for the premises as and when required under the said contract. There is documentation on record, which has not been challenged by the Applicant. The Applicant no doubt does not have clean hands even as it comes to this Tribunal to beg for injunctive relief. She has not done equity, and it should not expect the same of the other party. This Tribunal shall not be used as a veil and shield by defaulting tenants seeking to evade their contractual obligations.

12. In view of the facts set out above I have come to the conclusion that the Motion dated 10th February, 2021 is not merited. However as pointed out to above the 1st Respondent failed to follow laid down procedure in levying distress. The distress is therefore suspended. The 1st Respondent shall furnish the Applicant with an up-to-date statement of account within 7 days indicating the rent arrears due. The Applicant shall settle the rent arrears due within 21 days upon receipt of the statement of account. In default, the Respondent shall be at liberty to levy distress in the laid down manner.

It is so ordered.

DATED, SIGNED AND DELIVERED 8TH DAY OF SEPTEMBER, 2021.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mr. Kamau for the Tenant/applicant

No appearance for the Landlord/Respondent