[2022] KEBPRT 905 (KLR)

Ndiritu v Munene & another (Tribunal Case E028 of 2022) [2022] KEBPRT 905 (KLR) (Civ) (9 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 905 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E028 of 2022

Gakuhi Chege, Vice Chair

December 9, 2022

Between

Margaret Wangechi Ndiritu

Applicant

and

Simon Maina Munene

1st Respondent

Registered Trustees Diocese Of Meru

2nd Respondent

Ruling

1. The instant reference relates to a business premises standing on LR No Block T/191 situate within Meru Town. The tenant entered into a lease agreement with the 1st respondent for a period of 3 years 1 month for use as a shop at an agreed monthly rent which was dutifully being paid.

2. The lease agreement is attached as annexure 1 to the affidavit in support of the application filed herein. However, the 2nd respondent started staking a claim over the business premises and issued a notice to vacate marked annexure 2 on May 24, 2022 indicating that the lease given to Dennis Kimanthi Koigi and the 1st respondent expired on November 30, 2021 and that the 2nd respondent did not desire to extend it.

3. In the said notice, there is reference to ELC Case No 134 of 2018 in which the said 1st respondent and Dennis Kimanthi Koigi had obtained interim orders which were vacated on May 23, 2022. The notice was therefore issued pursuant to section 152A, 152 B and 152E of the Land Act, 2012 for a period of three (3) months. The two were required to cease any operations and to demolish any structures and grant vacant possession of the suit property failure to which eviction would ensue.

4. Fearing eviction, the tenant came to this Tribunal seeking for orders of injunction on the basis that the said notice by the 2nd respondent was illegal, null and void for failure to comply with the law.

5. It is the case of the tenant that the 1st respondent had been issuing verbal threats which would injure and damage business including disconnection of power and water supply and removal of the premises roof.

6. Interim orders were given in favour of the tenant pending hearing inter-partes. Despite both respondents having been served with the application for injunction, only the 1st respondent filed a replying affidavit sworn on October 24, 2022.

7. The 1st respondent deposes that he leased the suit property on November 21, 2014 from the 2nd respondent and constructed a two storey building thereon. The tenant’s lease expires on December 1, 2023.

8. The 2nd respondent is accused of issuing an eviction notice against the tenant which is dated May 24, 2022 and was unlawfully threatening to evict the tenant. The 1st respondent filed Meru CM ELC No E045 of 2022 to challenge the eviction notice and termination of lease as per the plaint marked ‘SM1’ attached to the replying affidavit.

9. According to the 1st respondent, the eviction notice issued against the tenant is unlawful and/or illegal for failure to comply with provisions ofcap 301, Laws of Kenya. He deposes that he has no desire to terminate the tenancy between him and the tenant. The tenant had no rent arrears.

10. I am required to determine the following issues in this matter:-(a)Whether the tenant is entitled to an order of temporary injunction as sought in the application dated August 22, 2022. (b)Whether the tenant’s complaint dated August 22, 2022 ought to be allowed.(c)Who is liable to pay costs of the suit?

11. The principles considered in an application for injunction were well settled in the case of Giella v Cassman Brown & Co Ltd [1973] EA 358 as follows:-(i)An applicant must show aprima facie case with a probability of success.(ii)An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.(iii)When the court is in doubt, it will decide the application on a balance of convenience.

12. As submitted by counsel for the applicant, aprima facie case was defined in the case ofMrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR at page 2 as follows:-“Aprima 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 properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”.

13. It would appear that the second respondent served the notice to vacate the suit property against the first respondent without considering the fact that there were subtenants in occupation of the premises who are protected under cap 301, Laws of Kenya.

14. I have not seen any notice of termination of the tenant’s tenancy under section 4(2) of cap 301, Laws of Kenya and the 1st respondent does not oppose the application for injunction and the complaint. On the other hand, the 2nd respondent has not filed any pleadings in this case despite service of pleadings. The application therefore remains unopposed and is thus for allowing.

15. As regards costs, the same are in the Tribunal’s discretion but always follow the event under section 12(1) (k) of cap 301 unless for good reasons otherwise ordered. The 1st respondent did not oppose the applicant’s case and the 2nd respondent has not filed any pleadings to warrant award of costs against it. Each party shall therefore bear own costs of the case.

16. I note that the issues raised in this matter are on all fours similar to those raised in Meru BPRT NO E029 of 2022 Meru BPRT NO E044 of 2022 and Meru BPRT No EO30 of 2022 as they all relate to the suit property and the same impugned notice. This ruling shall therefore apply to the said matters.

17. In conclusion, the final orders which commend to me in this matter pursuant to section 12(4) of cap 301, Laws of Kenya are:-(a)An order of injunction is hereby issued restraining the 2nd respondent by itself, employees, servants agents or anyone claiming under it from terminating, locking up the tenant’s business premises or otherwise interfering with the tenant’s peaceful and quiet enjoyment of the demised premises situate on LR NO Block T/191, Meru Town without complying with provisions of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301 Laws of Kenya.(b)The tenant’s reference herein is hereby allowed in the foregoing terms.(c)This ruling shall apply to Meru BPRT No E029, E030 & E044 of 2022 whose facts are on all four similar.(d)Each party shall bear own costs of the suits.It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 9TH DAY OF DECEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in the absence of the parties.