[2021] KEBPRT 349 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO.322 OF 2021 (NAIROBI)

NELLY MUKAMI KABUI.....................................LANDLORD/APPLICANT

VERSUS

ROBERT WACHIRA GATHUYA

T/A BARAKA HOTEL................................................TENANT/RESPONDENT

RULING

1. By a motion dated 8th April 2021, the Landlord/Applicant is seeking that the Tenant/Respondent be ordered to clear all the outstanding rent arrears in the sum of Kshs.200,000/- and the utility bills amounting to Kshs.143,426/- pending hearing and determination of the application.

2. The Landlord is further seeking that pending hearing and determination of the application, the Tenant/Respondent be mandated to restore the wall status of the premises as he found them and further be prohibited from making more damages in the form of renovations.

3. The Landlord also seeks that pending hearing and determination of the suit, the termination notice dated 12th December 2020 issued by her to the Tenant/Respondent be considered effectively served in the proper form.

4. The application is supported by the affidavit of Simon Mungai Kabui sworn on 8th April 2021 in which she deposes that she entered into a two years renewable periodic tenancy with the Tenant/Applicant in October 2006.

5. She further deposes that since July 2019, the tenant has been absconding his duties to pay rent and electricity bills and has been making modifications to the premises walls in form of renovations rendering the walls weak.

6. The Respondent is accused of failing to service his electricity bills leading to disconnection of power for the building which affected other tenant’s businesses.

7. As a result, a meeting was held with all tenants which resolved to install prepaid electricity meters (tokens) which the Respondent failed to do.

8. As a result of the continued default by the tenant to perform his obligations, the Landlord issued a termination of tenancy notice dated 12th December 2020 citing his consistent failure to pay rent on the days reserved, failure to pay utility bills, unauthorized modifications to a wall within the premises rendering the building weak and finally failure to pay electricity deposit fee for installation of prepaid meter tokens.

9. The Respondent filed a “further replying affidavit” sworn on 20th March 2021 in opposition to the application stating that he has not been enjoying the suit premises as the Landlord disconnected his electricity leading to loss and damages.

10. He depones that he was facing financial constraints brought about by Covid-19 pandemic which negatively affected his business since March 2020 and that he had notified the Landlord about his situation.

11. He denies making any modifications to the premises walls by way of renovation. He however admits owing rent arrears of Kshs.200,000/- from March 2020 up to date which he was willing to pay when things return to normal and that he has been paying his monthly rent as usual without fail.

12. The Respondent denies that he caused electricity disconnection to the whole building saying that it is the Landlord who denied Kenya Power access to reconnect the tenant’s electricity leading to main pole disconnection.

13. Having analysed the pleadings, the issues that emerge for determination are as follows:

a. Whether the Landlord/Applicant is entitled to the orders sought.

b. Who is Liable to pay costs?

14. I have gone through the evidence presented and it is not in dispute that the tenant is in arrears of Kshs.200,000/- which he blames on the effects of Covid-19 Pandemic.

15. It is actually true that Covid-19 has had devastating effects on virtually every conceivable business venture and this Tribunal cannot close its eyes to the same.

16. However, the pandemic effects is not a carte blanche for tenants to shirk their legal responsibilities to pay rent and to perform other obligations under the Landlord /Tenant Contracts. It can only be used as a basis for limited accommodation on case to case basis regard being had to the efforts made by the individual tenant to make good the arrears and check any escalation in the fullness of time.

17. I have taken the tenant’s proposal to clear the arrears in the next six (6) months and taken the foregoing factors into consideration and I will grant him a period of 4 months to pay the arrears in equal instalments of Kshs.50,000/- in addition to rent due per month.

18. In regard to the issue of damage to the walls of the premises, I have not seen any professional report or even a photograph to prove the same and in absence of such evidence, I cannot exercise the discretion to issue a mandatory injunction in favour of the Applicant/Landlord.

19. I am in this regard guided by the Court of appeal decision in the case of Kenya Breweries Limited and Another – vs- Washington O. Okeyo (2002) eKLR wherein the court quoted Vol. 24, Halsbury’s Laws of England, 4th Edn at paragraph 948as follows:-

“A mandatory injunction can be granted on an interlocutory as well as at the hearing, but, in the absence of special circumstances, it will normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempted to steal a march on the Plaintiff……………a mandatory injunction will be granted on an interlocutory application”.

20. Citing the English case of Localbail International Finance Ltd – vs- Agro export and Others (1986) 1 ALL ER 901 at pg 901 the court of Appeal went on to hold:-

“…………………….Moreover, before granting a mandatory injunction, the court had to feel a high degree of assurance that at the trial, it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction”.

21. In the premises, the prayer for mandatory injunction is denied at this interlocutory stage.

22. Based on the foregoing findings, I make the following orders:-

i. That pending the hearing and determination of the Reference, the Tenant/Respondent is hereby ordered to clear the admitted sum of Kshs.200,000/- owing to the Landlord/Applicant within the next Four (4) months from the date hereof.

ii. The said arrears shall be liquidated in four(4) monthly equal instalments of Kshs.50,000/- with effect from 15th September 2021 and thereafter on or before the 15th day of each subsequent calendar month until payment in full and in default distress to levy.

iii. The Tenant/Respondent shall continue paying monthly rent in the manner agreed upon with the Landlord notwithstanding Clause (ii) above.

iv. Prayers 3 & 4 of the application shall go to hearing and are therefore denied at this stage.

v. Costs of the application shall abide the outcome of the Reference.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 17TH DAY OF AUGUST 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Miss Oketch for the Tenant/Respondent

No appearance for the Landlord/Applicant