[2022] KEBPRT 740 (KLR)

Olunyenyi v Director, Mfangano Trade Center Ltd & another (Tribunal Case E190 of 2022) [2022] KEBPRT 740 (KLR) (24 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 740 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E190 of 2022

Gakuhi Chege, Vice Chair

August 24, 2022

Between

Jeremiah Kalachi Olunyenyi

Applicant

and

Director, Mfangano Trade Center Ltd

1st Respondent

Julius Karanja

2nd Respondent

Ruling

1. The tenant moved this Tribunal vide a reference/complaint dated 25th February 2022 pursuant to section 12(4) of Cap. 301, Laws of Kenya stating that there was an unlawful and irregular eviction from premises no. F18, Mfangano Trade Centre along Mfangano Street. He also complains about illegal and unlawful seizure of customers printing machines, illegal and unlawful break-in and closure of the business premises by the landlord.

2. The tenant simultaneously filed a motion dated 25th February 2022 seeking an order of reopening of the premises and release of his printing machines pending hearing of the application and the suit.

3. He also seeks for an order to prohibit repossession or removal of printing machines kept in the suit premises and return of one printing machine illegally removed from the suit premises and for termination of his tenancy.

4. In his supporting affidavit sworn on 25th February 2022, the tenant alleges that the Respondents illegally and unlawfully locked the suit premises together with the printing machines therein. The landlord is said to claim Kshs.238,800/- in rent arrears yet the premises were locked by them.

5. The tenant therefore prays for an order to compel the Respondents to release the printing machines to him and return of one (1) printing machine carted away by them.

6. Interim orders were given on 28th February 2022 directing reopening of the suit premises and restraining the Respondents from repossessing and/or removing the printing machines kept in the premises pending hearing inter-partes on 18th March 2022.

7. On 18th March 2022, the Respondents’ counsel applied for a period of seven (7) days to file a response which was granted and the interim orders were extended. The matter was therefore set down for hearing of the application on 11th April 2022.

8. On 11th April 2022, the tenant applied for authority to break into the premises. The said authority was granted and the matter fixed for mention on 26th April 2022.

9. On 26th April 2022, the matter came up for mention when counsel for the tenant submitted that they were unable to enforce the orders of 11th April 2022 and sought that the same be revoked as the tenant had another office elsewhere. The landlord’s counsel stated that if the tenant wished to terminate his tenancy, he should follow the law. As such the matter was adjourned for mention on 12th May 2022.

10. On 25th April 2022, the 1st Respondent/Landlord through one Esther Hihu swore a replying affidavit in opposition to the application by the tenant stating that she is a manager of Mfangano Trade Center Ltd which is the landlord in this matter and had authority to swear the affidavit.

11. She deposes that the instant suit was intended to defeat the landlord’s interest of recovering rent arrears from the tenant. She further deposes that the landlord demanded rent arrears in 2019 upon which the tenant closed the suit premises and relocated his business to an adjacent shop from where he has been operating. He also moved his computers to the new premises. She denies that the landlord caused the closure of the suit premises.

12. During the years 2020 and 2021, the premises remained closed at the behest of the tenant without any payment of rent which occasioned huge financial loss to the landlord. On one occasion in 2019, one of the tenant’s printing machine was attached, proclaimed and sold by auctioneers by way of distress for rent.

13. The tenant did not oppose the distress at that time and as such it is the Respondent’s case that it is too late to claim the printing machine. The current rent arrears is said to exceed Kshs.240,000/- and the orders sought by the tenant will occasion injustice to the landlord.

14. The tenant filed a supplementary affidavit sworn on 11th May 2022 in which he deposes that the deponent of the replying affidavit has not tendered evidence that she has authority to swear it on behalf of the Respondent under order 1 Rule 13(1) & (2) of the Civil Procedure Rules.

15. Although the tenant contends that the Respondents’ counsel stated that his clients had opened the suit premises, the same is not borne out of the court record.

16. The tenant deposes that the premises has been closed for the last 4 years by the landlord who cannot demand rent for the period as this would be “an attempt at unjustly enriching themselves”.

17. The tenant contends that the Respondents have been engaging in illegal activities and attaches letters dated 7th January 2020 and another one written in the same month as well as proclamation of attachment dated 6th January 2020 as annexures ‘JK-1’ & ‘JK-2’ wherein he complains against alleged illegal seizure of a photocopying machine, locking of office and refusal to allow him to leave the suit premises despite there being no lease agreement among other issues.

18. The tenant denies having moved out of the suit premises with his machines and insists the same are held in the suit premises as shown on photographs marked ‘JK’.

19. The application and complaint was ordered to proceed by way of written submissions but only the Applicant complied. I shall consider the submissions together with the issues for determination set out hereunder.

20. From the pleadings, the following issues arise for determination:-a.Whether the tenant is entitled to the reliefs sought in the application dated 25th February 2022. b.Who is liable to pay costs?

21. It is not in dispute that the suit premises is locked but it is not clear whether the same was done by the landlord or the tenant. Although the tenant has annexed as ‘JK-1’ & ‘JK-2’ two demand letters listing several complaints against the landlord, he never took any legal action until two years later when he filed the instant complaint. One wonders where he was all this time.

22. It is instructive to note that the tenant did not disclose in his pleadings the date of alleged closure of the premises until interim orders obtained under certificate of urgency by the tenant were granted but never executed and on 26th April 2022 the tenant’s counsel sought for revocation of the break-in order given on 11th April 2022 on the grounds that the tenant had another office elsewhere.

23. The tenant is seeking for equitable remedy of mandatory injunction which is opposed by the landlord absent of payment of rent arrears. However it is also not clear why the landlord took all this time to claim the arrears if the premises were not locked.

24. In the case of Amina Karama – vs- Njagi Gachagua & 3 Others(2020) eKLR at paragraph 20, it was held as follows:-“It has been held that equity aids the vigilant and not the indolent. It has been held that delay defeats equity. In the case of Ibrahim Mungara Mwangi – vs- Francis Ndegwa Mwangi (2014) eKLR, the court quoted the following passage from snell’s Equity by John M.C Ghee QC (31st Edition) at page 99:-“ The court of equity has always refused its aid in stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence, where these want, the court is passive and does nothing”.

25. In view of delay by both the tenant and landlord in asserting their rights, this Tribunal cannot exercise its equitable jurisdiction to grant their respective claims. It is for example inconceivable that the tenant is seeking compensation for a machine taken pursuant to a distress which took place on 6th January 2020 under Distress for Rent Act, Cap. 293, Laws of Kenya according to his annexure ‘JK-2’. One wonders where he has been since then. Equally, the landlord without specifying the period when the arrears of rent accrued is seeking for a sum exceeding Kshs.240,000/-. I wonder what was difficult in filing suit to recover the same.

26. I note that the tenant wishes to move out of the suit premises and the only hinderance is that the landlord insists on payment of unspecified rent arrears. Section 4 (2) of Cap. 301, Laws of Kenya does not require a tenant to give any formal notice as it is couched in a manner that imposes that duty upon the landlord only. I therefore do not see any sense in the landlord’s counsel insisting on the tenant following the law.

27. In the premises, I shall allow the tenant to move out of the premises unconditionally with his properties and refuse to award any rent arrears to the landlord as there is no evidence of how it is made up or how it accrued when it is common ground that no business has been conducted in the suit premises since January 2020 by the tenant.

28. As regards costs, the same are in the Tribunal’s discretion under section 12(1) (k) of Cap. 301 but always follow the event unless for good reasons otherwise ordered. I have no reason to award any of the parties costs in view of what I have said above. They both slept on their rights.

29. In conclusion, the final orders which commend to me under section 12 (1) (4) of Cap. 301, Laws of Kenya are:-i.The Tenant is granted an order to unconditionally remove his properties from the suit premises situate at Mfangano Trade Centre Ltd shop no. F18 forthwith and the landlord shall facilitate the exit and in default the OCS, Central Police Station shall enforce compliance by breaking into the suit premises to enable the said exit.ii.The landlord shall not be entitled to any rent arrears claimed as there is no evidence to justify the same.iii.Each party shall meet own costs of the case.It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 24TH DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Mbuthia for the Tenant/ApplicantNo appearance for the Respondent