[2025] KEBPRT 337 (KLR)

Necst Motors Kenya Ltd v Place Four Forty Six Ltd (Tribunal Case E611 of 2025) [2025] KEBPRT 337 (KLR) (10 July 2025) (Ruling)

Neutral citation: [2025] KEBPRT 337 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E611 of 2025

P May, Member

July 10, 2025

Between

Necst Motors Kenya Ltd

Tenant

and

Place Four Forty Six Ltd

Landlord

Ruling

1. The tenant approached the Tribunal by filing the Complaint dated 29th May 2025. Contemporaneous with the reference, the tenant filed an application under certificate of urgency seeking for orders of injunction against the landlord from several acts and an order compelling the landlord to release vehicles as enumerated in prayer 8 of the Application.

2. The application was opposed vide the detailed Replying Affidavit sworn on 9th of June 2025 by one Manish Dabasia a director of the landlord.

3. The tenant did not file a further response to the Replying Affidavit.

4. The parties elected to canvass the application by way of written submissions. I have considered the submissions on record and the affidavits filed. I would proceed as follows:

5. Both parties have submitted to the jurisdiction of this Tribunal therefore I shall proceed with this matter under enabling provisions of the law.

6. The tenant’s contention and the genesis of this complaint and application is that the Landlord proceeded and instructed an auctioneer to levy distress without being given notice and despite them showing good faith and paying Ksh 5,000,000/=. This they say is after writing to the landlord with a proposal on settlement.

7. The tenant does not dispute being in arrears just that they were not notified before distrain.

8. The landlord filed a detailed Response to the Application and stated that the tenant is in arrears of Ksh 42,273,447/=. The annexures including the tenant’s own correspondence confirm this.

9. The landlord contends that the tenant defaulted in making rent payments forcing the landlord to demand for the same and instruct an auctioneer to distrain for the same. This, he says was done according to the provisions of CAP 295.

10. Despite the detailed Replying Affidavit, the tenant did not see a need to file a further response as such all the averments by the landlord.

11. From the annexures in The Replying Affidavit and by the tenant’s own admissions in those annexures, the tenant owes an astronomical figure of Ksh 42,273,447/=

12. The tenant’s proposal for settlement is dated 12th June 2024, more than a year ago and yet that amount is still outstanding as such I would understand the landlord’s apprehensiveness in further engagement and concessions with this tenant.

13. That said, was and is the tenant then deserving of the orders sought and those granted in the interim? 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 and Co,Ltd (1973) EA 358.

14. It should be established that the applicant has a prima facie case with a probability of success, an injunction would not normally issue unless the applicant might otherwise suffer irreparable loss, and, when in doubt, the court decides the matter on a balance of convenience.

15. In my opinion then and flowing from above, the tenant herein has not met any threshold for the grant of orders of injunction.

16. As to whether the landlord was mandated to give a notice to the tenant or seek leave before levying distress, this is governed by CAP 295 Distress for Rent Act and I am in agreement with the landlord’s submissions that he was not required to seek leave but give the statutory period which was done and annexed to the replying affidavit.

17. Having established that the tenant was in arrears, the Landlord was right in so proceeding in that manner.

18. One of the cardinal obligations of a Tenant is to pay the reserved rent as and when the same becomes due and payable. It would be ridiculous for a court of equity to grant a Tenant or a party the right to equitable protection so as to avoid his/her obligation under a tenancy contract. This Tribunal cannot equally do so as whoever comes to equity must do equity.

19. In the case of; Samuel Kipkorir Ngeno & Another – vs- Local authorities Pension Trust (Registered Trustees) & Another (2013) eKLR the Superior court at paragraphs 9 and 12 had the following to state on the issue of non-payment of rent:-“9. A tenant’s first and main obligation is to pay rent as and when it becomes due, for the Landlord has the right to an income from his investment. Why would a tenant allow himself to fall into such huge arrears of rent?.12. 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 underserving 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”.

20. In view of the foregoing, it is clear that the application dated 29th May 2025 by the tenant is only ripe for dismissal. On the question of costs, it is trite law that costs follow an event.

21. In the premises and in line with the foregoing findings and analysis, I make the following orders: -a.The tenant’s application dated 29th May 2025 is hereby dismissed. Orders granted on the 29th May 2025 vacated.b.The tenant shall pay all the outstanding amounts by close of business 24th July 2025 failure to which the Landlord shall proceed with the process of distress for the arrears of Ksh 42,273,447/=c.Complaint settled in the above termsd.Costs to the landlord.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY 2025HON. PATRICIA MAY - MEMBER10. 7.2025Delivered in the presence of;Mbae for the Tenant/ApplicantClapon for the Landlord