[2022] KEBPRT 710 (KLR)

Nyaga t/a Greener Life School v Katungi t/a Good Hope Pefa Church & another (Tribunal Case E318 of 2022) [2022] KEBPRT 710 (KLR) (Civ) (7 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 710 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E318 of 2022

Gakuhi Chege, Vice Chair

September 7, 2022

Between

Evanson Njeru Nyaga t/a Greener Life School

Tenant

and

Michael Katungi t/a Good Hope Pefa Church

1st Respondent

Rogers Mabonga

2nd Respondent

Ruling

1. The tenant moved this tribunal vide a reference under section 12(4) of cap 301, Laws of Kenya in which he complained that the landlord destroyed his business premises and as a result he was suffering loss and damages yet his rent was fully paid and had no arrears.

2. By a motion dated April 7, 2022, the tenant moved the tribunal seeking to be allowed to continue with his business without interruption pending hearing and determination of the suit. He also sought for restoration of the damaged property with Kshs 688,000/- pending determination of the suit.

3. Under prayer 4 of the motion, the tenant sought for reconnection of power supply pending hearing and determination of the suit together with a restraining order from interference by the landlord/respondents with his quiet occupation and lawful enjoyment of the suit premises located at Westlands.

4. The tenant through his supporting affidavit deposes that the suit premises is owned by the landlord and the monthly rent has been is Kshs 15,000/- for the last 13 years. On March 27, 2022, the respondent is accused of invading the suit premises and destroying property estimated at Kshs 688,000/- and demanded that the tenant vacates therefrom.

5. The tenant deposes that he has employees who depended on him and the suit premises was his only source of livelihood. As such he stood to suffer irreparable loss and damage.

6. The tenant maintains that he had no rent arrears that would warrant his harassment and unfair eviction from the suit premises.

7. Interim orders of injunction were issued on April 13, 2022 which inter-alia prohibited the respondents from illegally evicting the tenant or interfering with his quiet enjoyment and possession of the suit premises pending hearing inter-partes.

8. The application is opposed through a replying affidavit of the 1st respondent sworn on May 10, 2022 wherein it is deposed that Pentecostal Evangelistic Fellowship of Africa (PEFA) church was registered under the societies Act cap 108, Laws of Kenya on July 18, 1962 as per annexure “MNK-1”.

9. The church leased the suit premises to the applicant in the year 2009 for purposes of running a primary school business. Both the church and the school share a compound. The tenant occupies the old church hall paying a monthly rent of Kshs 15,000/-.

10. Initially the tenant paid rent faithfully but started defaulting in payment of rent and was in arrears of Kshs 125,000/- as at August 2021. At a meeting held on August 13, 2021, the tenant agreed to settle the arrears in instalments by December 31, 2021.

11. By the time of issuance of the ex-parte orders on April 13, 2022, the tenant is said to have been in arrears of two (2) months and as at May 10, 2022 was in three (3) months arrears all totaling to Kshs 45,000/-.

12. The tenant is accused of substantial breaches of his obligations by overreaching the scope of his tenancy without express written consent and authority of the landlord e.g taking over the church store, demolishing and rebuilding the church kitchen, renovated the church perimeter wall, illegal water connection, construction of drainage and erecting containers within the premises etc.

13. According to the landlord, the alleged destruction of the tenant’s property was under police investigation and there was no evidence that the church was involved or responsible and that under section 12(2) of cap 301, this tribunal has no jurisdiction to investigate allegations of a criminal nature.

14. The tenant is accused of frustrating attempts to reduce the terms of tenancy into writing as per annexures “MNK-5 & 6”. The tenant is also accused of trying to kick the landlord out of its own premises by causing maximum discomfort and inconvenience to the church.

15. The tenant is further accused of coming to this tribunal with unclean hands and the case ought to be dismissed with costs and interim orders discharged as the landlord/tenant relationship had irretrievably broken down and as such the tenant ought to vacate the premises.

16. On May 11, 2022, the tenant was ordered to pay rent for the months of March, April & May 2022 and thereafter monthly rent as it fell due and payable.

17. The tenant filed a supplementary affidavit sworn on May 25, 2022 attaching photographs of developments erected on the suit premises marked ‘ENN1’. He claims to have developed the school from the year 2005 after proprietors of parcel No LR 7785/815, Muringa land company allowed him to do so.

18. The tenant contends that he was paying rent for the open space that was owned by the 1st respondent where the children used to play and that is how the landlord/tenant relationship emanated.

19. I am required to determine the following issues:-a.Whether the applicant/tenant is entitled to the reliefs sought.b.Who is liable to pay costs of the case?

20. The principles for the grant of injunction were settled by the locus classicus case of Giellla v Cassman Brown & Co Limited(1973) EA 358 to wit:-i.An applicant must show a prima 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 the balance of convenience.

21. A prima facie case was defined in the case of Mrao Limited v First American Bank of Kenya Ltd & 2 others(2003) eKLR to mean 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 auto call for an explanation or rebuttal from the latter.

22. It is trite law that he who alleges must prove. Indeed this is the tenor of section 107(1) of the Evidence Act, cap 80, Laws of Kenya which provides as follows:-“107(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists”.

23. In the instant case, the tenant contends that the suit premises is owned by the landlord who is named as one Michael Katungi at a monthly rent of Kshs 15,000/-. According to the 1st respondent, the suit premises belongs to Pefa church which is a registered society under cap 108, Laws of Kenya. The tenant claims that the sum of Kshs 15,000/- relates to the open space used as a play ground for the children in his school and that he constructed the 10 classrooms used by ‘Greener Life School’.

24. In the supplementary affidavit sworn on May 25, 2022, the tenant at paragraphs 8 and 9 states that the 1st respondent together with his goons demolished classrooms without any notice or legal basis on parcel no. 7785/815 to which the 1st respondent is not the proprietor neither does he have any ownership rights thereon.

25. It is not clear from the depositions in the affidavits filed by the two parties whether any landlord/tenant relationship exists between them moreso given that the 1st respondent states that the land parcel belongs to the Pefa church while the tenant claims it belongs to Muringa Land Company which allowed him to construct the school on the suit land parcel.

26. The rent payment receipts filed together with the list of documents dated July 22, 2022 shows that repayment was made to Good Hope PEFA church including the bank deposit slip. The said church is not a party to the instant proceedings.

27. In view of the foregoing, I am unable to hold that the applicant has demonstrated a prima facie case with a probability of success.

28. Secondly, the applicant states in his affidavits that when destruction of his property took place, he reported to the police and the issue was subject matter of criminal investigations. I have not seen an extract of the police report to establish who are the suspects named in the report and as rightly put by the respondents, this tribunal has no jurisdiction under section 12(2) of cap 301, to deal with criminal allegations or offences even when they relate to controlled tenancies.

29. By the time the tenant came to this tribunal, the actions sought to be stopped had already happened and I do not consider that the injunction sought in this matter is efficacious moreso in absence of any demonstration that there exists any landlord/tenant relationship between the parties before this court.

30. As regards the compensation of Kshs 688,000/- claimed by the applicant, no attempt has been made to place any evidence before me as to how the amount is arrived at and on what basis the two respondents are liable. The claim is in the nature of special damages which must be specifically pleaded and strictly proved in line with the decision in the case of Hahn v Singh(1985) eKLR.

31. In the premises, I am unable to hold that the tenant/applicant is entitled to the reliefs claimed under section 12(4) of cap 301, Laws of Kenya which allows this tribunal upon investigation to make its own findings and order thereon as it deems fit.

32. On the issue of costs, the same are always in the tribunal’s discretion under section 12(1) (k) of cap 301, Laws of Kenya but follow the event. I have no reason to deny the respondents costs.

33. In conclusion therefore, the following final orders which commend to me in this matter are that :-i.The tenant/applicant is disentitled to the reliefs claimed in this case and the application dated April 7, 2022 and the reference of even date is dismissed with costs.ii.The interim orders given on April 13, 2022 are discharged/set aside.iii.Costs of Kshs 20,000/- are awarded to the respondents against the tenant.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 7TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kieme Gicheru for the RespondentsTenant/Applicant in person