[2021] KEBPRT 400 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 466 OF 2020 (NAIROBI)

NYOTA HOTEL..........................................................................TENANT/APPLICANT

VERSUS

GRALA LIMITED.......................................................LANDLORD/1ST RESPONDENT

CHRISTOPHER GITAU GITHAKA........................LANDLORD/2ND RESPONDENT

RULING

When this matter came up for hearing on 7th April 2021, counsel for the parties by consent, agreed to have the application dated 30th April 2020 and the reference herein disposed of by way of written submissions. At the time of writing this ruling, both counsel have filed their respective submissions. Earlier on, on 24th February 2021, the parties herein had agreed by consent that a Rent Inspector do visit the premises and issue a report on the status on the ground in terms of possession. That report has been filed as at the time of writing this ruling. I now proceed to summarize the respective parties’ cases as follows;

The reference filed by the Tenant under section 12(4) of Cap 301 raises the following complaints against the Landlord;

1. That the Landlord has threatened to evict the Tenant herein from the premises illegally.

2. The Landlord has illegally broken into the Tenant’s hotel and carted away all his hotel equipment, machinery books of accounts, administrative records and stock in a bid to evict him.

3. The Landlords/Respondents are harassing the Tenant herein.

4. That the Landlord is using the temporary closure of the Tenant’s premises on account of the Government advisory due to covid 19 (corona virus) to effect illegal eviction.

5. That the Tribunal do investigate the complaint herein and make the necessary orders.

The Tenant’s notice of motion dated 30th April 2020 and filed together with his above reference sought the following orders;

1. Spent.

2. That the Landlords/Respondents be restrained from evicting, harassing or in any way interfering with the Tenant’s enjoyment and occupation of his tenancy herein pending the hearing and determination of this complaint.

3. That the Landlords/Respondents and in particular, Christopher Gitau Githaka be and are hereby compelled to return the Tenant’s Hotel equipment, machinery, book of accounts, administrative records, taken from the suit premises pending the hearing and determination of this complaint.

4. That pending the hearing and determination of this suit, this honourable Tribunal be pleased to suspend the payment of rent.

5. The OCS Central Police Station to ensure compliance.

6. Costs.

The application is based on the grounds;

1. That the Respondents illegally broke into the Tenant’s business premises and carted away various properties belonging to the Tenant and were in the process of evicting the Tenant when police intervened.

2. That the Landlord’s actions are illegal and contrary to the provisions of Cap 301 Laws of Kenya.

3. That the Tenant will suffer irreparable loss and hard of the Tribunal does not intervene.

The Tenant’s affidavit in support of its application may be summarized as follows;

1. That the Tenant is a protected Tenant.

2. That the Tenant is up to date on its rent payments, however its evidence of rent payment has been carted away by the Respondents.

3. That on 26th April 2020, the Respondents illegally assessed the suit premises through the back door and carried away the Tenant’s items/properties listed under paragraph 5 of the Tenant’s affidavit.

4. The Tenant retook possession of the suit premises with the help of the police.

5. That the Respondents have thereafter written to the Applicant asking it to pick its goods and vacate the premises, upon the Tenant’s refusal, the Respondent offered it a partnership in the running of the business.

6. That the Respondents are just being greedy as they run a similar business in the same premises.

7. That the list of the Tenant’s properties being held by the Respondent is the one found under paragraph 10 of the Tenant’s affidavit in support of its application.

8. That the Respondents have a history of committing illegalities against the Applicant/Tenant herein.

The application is opposed by the Respondents. The 2nd Respondent has sworn a replying affidavit which I proceed to summarized as follows;

1. That the Applicant has approached the Tribunal with unclean hands.

2. That the Applicant has not demonstrated that he has been paying rent.

3. That the Tenant has been intermittently paying rent which has seen the Tenant accumulate rent arrears of Kshs 3,500,000/-.

4. That attempts to levy distress against the Tenant have been futile as the Tenant has been hostile and has also obtained orders from the Tribunal/Court.

5. That vide case No. 953 of 2017 the Respondent obtained eviction orders against the Applicant among other Tenants but the Respondent’s attempts at eviction have been frustrated by the Tenants.

6. That rent default in the premises is causing the family of the Respondent loss and great hardship.

7. That the Applicant has ignored served summons from the Chief on matters relating to the rent arrears.

8. That an April 2020, the Respondents managed to obtain vacant possession when he visited the premises with the Chief.

9. That the Tenant yielded vacant possession and requested the Respondent to keep its goods in safe storage

10. That the Tenant has since moved out of the premises which are now under renovation.

11. That the Tenant is free to access his records.

12. That the Tenant is not deserving of the orders it has sought.

There is also on record an affidavit sworn on 10th June 2020 by the Respondent whose summarized contents are as follows;

1. That the Tenant is in total possession and control of the premises.

2. The Tenant has always paid rent, otherwise, the Respondents right to have issued a valid notice to terminate the tenancy.

3. That case No. 953 of 2017 referred to by the Landlord’s Respondents was set aside and the said reference heard and determined in favour of the Tenant.

The findings in the report on the site visit conclude that the Tenant is in occupation of the suit premises.

The Applicant’s/Tenant’s submissions on its application under consideration may be summarized as follows;

1. There being no written lease between the Tenant and the Landlord, the Tenant herein is a protected Tenant under Cap 301 of the Laws of Kenya.

2. This being a controlled tenancy, the Landlord is enjoined by section 3(3) of Cap 301 to keep a rent book in regard to the tenancy herein.

3. That the issue of determination of payment of rent without the rent card is always held in favour of the Landlord.

4. That under section 4(1) of Cap 301, any adverse action by the Landlord against the Tenant without his/her approval or the sanction of the Tribunal is illegal and contravenes the provisions of Cap 301 of the Laws of Kenya.

5. That the Respondents’ acts of breaking into the Tenants business premises and carting away her properties is in contravention of section 4(2) of Cap 301 Laws of Kenya.

6. That the Respondents have not demonstrated under what authority they attempted to effect the eviction of the Tenant.

7. The Respondents have not attempted to levy distress; indeed, they have not attached any proclamation notice.

8. The Landlord has not presented any rent card to the Tribunal.

9. The Landlord has not presented any rent card to the Tribunal.

10. The Tenant is not able to bring his rent card on account of the fact that the same is being held by the Respondents.

11. That the Tenant is currently in occupation of the premises.

12. That on 26th May 2020, the Tribunal issued a judgement in favour of the Tenant. No orders were issued in favour of the Respondent in case No. 953 of 2017.

13. That since the Tenant has not been able to conduct any business on the premises due to the conduct of the Respondent, rent ought to be suspended from 26th April 2020till the Tenants tools of trade were returned. The Landlord has not traded in the premises since 26th April 2020.

The Landlord’s/Respondent’s submissions may be summarized as follows;

1. The Respondent’s submissions at paragraph 1 – 7 of the said submissions reiterates the contents of the Respondent’s replying affidavit sworn on 21st May 2020.

2. That the site visit report indicates that the Tenant has all along been carrying on business at the suit premises and it has never been evicted. In deed the padlock in the premises belongs to the Tenant.

3. That the Tenant has not paid any rent since 30th April 2020 when it filed this complaint.

4. That the Tribunal sits as a court of law and the scales of justice tilt both sides.

5. That the only pending prayer is that the Tenant’s goods be returned and the payment of rent be suspended.

6. That even at the time the goods were taken by the Chief, the Tenant was in default.

7. That the goods have been kept in good storage by the Chief.

8. That it is only fair that the Tenant be ordered to pay the rent arrears or be evicted.

The above being the summary of the parties’ cases, the following issues in my humble view arise for determination;

1. Whether the tenancy relationship between the Tenant/Applicant and the Respondents/Landlords is a controlled tenancy.

2. Whether the Landlord broke into the Tenant’s premises and carried away the Tenant’s goods and if so, whether the breakage and carrying away of the Tenant’s goods was illegal and in contravention of Cap 301 of the Laws of Kenya.

3. Whether the Tenant is in rent arrears.

4. Whether there is a justification for the suspension of rent payment by the Tenant from 30th April 2020.

5. Whether the Tenant/Applicant is entitled to the prayers sought both in his reference and the notice of application dated 30th April 2020.

On Issue No. 1

It is clear from the record and the averments of the Tenant herein that the lease between the parties was never reduced into writing. The Landlords/Respondents have also not challenged the Tenant’s position that this tenancy between the parties is a controlled tenancy.

Section 2(1) (a) of Cap 301 describes a controlled tenancy as “A tenancy which has not been reduced into writing or…

I am therefore satisfied that the tenancy herein is a controlled tenancy and therefore subject to the provisions of Cap 301 of the Laws of Kenya. The Tenant herein is a protected Tenant.

On Issue No. 2:

1. The Tenant has stated at paragraph 5 of his affidavit sworn on 30th April 2020,that on 26th April 2020, the Respondents illegally accessed the suit premises through the back door and carried away the Tenant’s goods specified under paragraph 10 of the said affidavit. The Tenant avers that he reported the illegal activities of the Respondents to the police vide OB No. 17 of 26th April 2020.

2. The Respondents on their part state in response to this aspect that in April 2020, they managed to get vacant possession of the premises when the 2nd Respondent went to the suit premises with the Chief and his office (sic) and the Tenant agreed to yield vacant possession and requested the Respondent for safe storage of his goods. The Respondent proceeds to state that the Tenant has since moved out of the premises.

3. The Respondent’s under paragraph 12 of their submissions further confirms that it is the Chief who took the Tenant’s goods and that the same have been kept in safe storage by the Chief since then.

4. Whereas the Tenant states that the Landlord does not explain how he “managed to get vacant possession of the premises” and how the Tenant “yielded vacant possession.”

5. If the Tenant yielded vacant possession peacefully, there would have been no reason for the Landlord to be accompanied by the Chief. The Tenant would also have had no reason to report the activities of the Respondent/Landlord to the Police if he was okay with ceding possession of the premises to the Landlord. if the Tenant requested the Landlord to avail a safe storage for the goods removed from the premises, then it beats logic that the same would now be in the custody of the Chief and further that the Tenant would sue for return of the same to itself.

I am, in the circumstances satisfied based on the affidavits and submissions that indeed the Landlord took away the Tenant’s items listed under paragraph 10 of the Tenant’s affidavit sworn on 30th April 2021. I am satisfied also that the Landlord broke into the Tenant’s premises in order to gain access therein. The Landlord has not specifically denied the averments of the Tenant at paragraph 5 and 10 of the Tenant’s supporting affidavit in relation to breaking in and carrying away the Tenant’s goods.

6. Was the breakage into the suit premises and carrying away of the Tenant’s goods by the Landlord illegal and in contravention of the provisions of Cap 301 of the Laws of Kenya?

Section 4(1) of Cap 301 is in the following terms “Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated and no term or condition in, or right or service enjoyed by the Tenant of any such tenancy shall be altered otherwise than in accordance with the following provisions of this Act.”

Section 4(2) of the same Act provides as follows:

“A Landlord who wishes to terminate a controlled tenancy or to alter to the detriment of the Tenant any term or condition in or right or service enjoyed by the Tenant under such a tenancy shall give notice in that behalf to the Tenant in the prescribed form.”

The Landlord’s invasion of the Tenant’s business premises on 26th April 2020 amounted to a constructive termination of the tenancy. It was not sanctioned by law. It did not follow the laid down procedure under section 4(2) as quoted here above. The carrying away of the Tenant’s goods was not proper and legal exercise of levying distress for owed/outstanding/accrued rent.

It was an act of impunity flying on the face of the law. The admission by the Respondents that the Chief is still holding the Tenant’s goods only compounds the problem herein. It is not clear on what authority the Chief would be or is holding the Tenant’s goods, seeing as it is that the Chef cannot levy distress against a Tenant neither is the Chief a recognized custodian of goods distrained under any relevant law.

I therefore do find that the Landlord’s breaking into the Tenant’s business and the carrying away of the Tenant’s goods by the Landlord was illegal and in contravention of the clear provisions of Cap 301 of the Laws of Kenya.

On Issue No 3:

From the outset, I would like to state that none of the parties have stated the rent payable monthly. The Tenant was up to day in rent payments and could not provide any evidence because the records evidencing payment of rent had been carted away by the Respondent.

The Respondent on its part contended that the Tenant has been “handing out” little amounts of money to the Landlord and has an outstanding rent arrears amounting to Kshs 3,500,000/-. Again, the Landlord did not provide any evidence of the little handouts. In this respect, the Tenant has taken an easy way out by merely stating that the Landlord failed to keep a rent book as required under section 3(3) of Cap 301.

I may be wrong but I do not think the provisions of section 3(3) takes away the burden of proof from a party who alleges. If the Tenant states that his/its rent is current, it is upon him to prove so. If on the other hand the Landlord states that the Tenant owes rent amounting to so much, it is for the Landlord to prove so. From the material placed before me, it is not possible to tell if rent was in arrears and even if so, how much of it was/is in arrears. I am not willing to give a wild guess!

Issue No. 4

I have already found that the taking away of the Tenant’s goods from the business premises on 26th April 2020 was illegal and in contravention of the provisions of Cap 301. To understand the weight of this issue, it is important to consider the goods carted away by the Landlord and their effect on the business operations of the Tenant. I say so considering the Tenant has stated that it has not been able to carry out any business as a result of the illegal activities of the Landlord on 26th April 2020.

At paragraph 10 of the Tenant’s supporting affidavit, the following are listed as the goods taken away by the Landlord;

1. 18 tables

2. 68 chairs

3. 126 cups

4. 115 plates

5. 23 sufurias (all sizes)

6. 120 food spoons

7. 135 tea spoons

8. 25 salt containers

9. 3 fridges

10. 12 jikos

11. 4 soup spoons

12. 15 knives

13. 3 cooking banners

14. 152 big plates

15. 1 6 kg meko

16. 1. 13 kg gas cylinder

17. 135 soup cups

18. Warmer destroyed

19. Lap top apple pro + printer

20. Licences

21. Files

22. Book keeping records

23. 32 sugar dishes

24. 12 kettles

25. ETR machines

The inventory annexed to the affidavit of the Respondent as document No 8 has the following items;

1. 10 jikos

2. 60 chairs

3. 18 tables

4. 8 trays

5. 3 fridges

6. 3 fire extinguishers

7. 12 sufurias

8. 3 milk cans

9. 2 frying pans

10. 2 gas burners

11. 1 TV not working

12. 3 old speakers

13. No utensils

14. 1 washing machine not working.

The two inventories contain different quantities and numbers of the goods taken away by the Respondent. Be that as it may, the taking away of these kind of goods from a hotel business would completely ground the hotel business a halt.

The site visit by a representative of the Tribunal found the following items belonging to the Tenant in the premises;

a. Warmers and a shelf

b. Coca cola refrigerator

c. Tables.

This is obviously a far cry from the inventories provided by both parties. The goods taken away from the demised premises are still being held by the landlord and/or his appointed agents. The Tenant could obviously not engage in any meaningful hotel business without the goods taken away by the Landlord illegally. The Landlord cannot be a beneficiary of his own acts of illegality, he had no excuse for failing to follow the laid down and clear provisions of the law as explained in the foregoing paragraphs.

In emphasizing the need to strictly adhere to the provisions of Cap 301, the High Court in the case of Lall Vs Jeypee Investments Ltd [1972] EA 512 stated as follows;

“The landlord and Tenant Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of Tenants for the purpose of offering them the protection specified by its provisions against ravages of predatory Landlords. Such protection can only be fully enjoyed if the provisions of the Act are observed to the letter otherwise, the clearly indicated intention of the legislature would be defeated.

In order to be effective in this fashion, the Act must be construed strictly no matter how harsh the result….. The Landlord and the Tenant Act laid down a code which Parliament intended to be followed if a Landlord does not give notice of termination as prescribed, the notice will be ineffectual. This may seem a technical and unmeritorious defence, but there is no doubt that the court has no power to dispense with these time limits if the Defendant chooses to object at the proper time. This is an act which requires, in so far as the giving of notice is concerned, absolute and complete not merely substantive compliance with its ……….provisions.”

I am satisfied that the Landlord effectively “closed down” the Tenant’s business and made it impossible to operate by the Landlord’s illegal actions of carrying away the Tenant’s goods on 26th April 2020. The goods are yet to be returned although the Tenant continues in occupation. I suspend the payment of rent to the Landlord from 26th April 2020 until such a time that the Landlord will return the goods belonging to the Tenant. The Landlord is obviously at liberty to pursue any rent arrears owing to it/him before 26th April 2020 using any lawful means available to him.

On Issue No 5

The Tenant’s reference is expressed to be brought under section 12 (4) of Cap 301 which is in the following terms;

“In addition to any other powers specifically conferred to it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord or the Tenant and may make such order thereon as it deems fit.”

Flowing from the findings I have arrived at about and having regard to the provisions of section 12(4) of Cap 301, I am satisfied that the Tenant is entitled to the following orders and which I hereby grant;

1. That the Landlord/Respondents, their servants, agents and or employees be and are hereby restrained from evicting, harassing and/or in any way interfering with the Tenant’s enjoyment and occupation of his tenancy on LR No 209/2384.

2. That the Landlord/Respondent and in particular Christopher Gitau Githaka be and is hereby compelled to return the Tenant’s hotel equipment, machinery, books of accounts and administrative records.

3. That the Landlord shall not be entitled to rent from the Tenant from 26th April 2020 and the same shall stand suspended until the Landlord complies with order 2 above requiring him/it to return the Tenant’s hotel equipment, machinery, books of accounts and administrative records.

4. The Landlord shall bear the costs of this application.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 3rdday of August 2021in the presence of Mr Narangwi for the Tenantsand Mr Wanjohi for the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL