[2021] KEBPRT 296 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E080 OF 2021 (NAIROBI)

PAUL MWANGI WARUTERE T/A

TOPMAX MEDIA..........................................TENANT/APPLICANT

VERSUS

LIGI NDOGO LIMITED..................LANDLORD/RESPONDENT

RULING

1. Through a motion dated 3rd May 2021, the Tenant moved this Tribunal seeking restraining orders against the Landlord/Respondent from locking up the suit premises or from evicting, harassing or in any other way interfering with his quiet occupation of the premises until the hearing and determination of the complaint.

2. Prayers 2 and 4 were granted at the ex-parte stage and do not therefore fall for determination.

3. The application is supported by the tenant’s affidavit sworn on 3rd May 2021 and the grounds set out on the face of the application.

4. It is the tenant’s case that in 2017, the landlord let the suit premises to him when the same was in a vacant and un developed state whereupon he undertook developments of business structures, toilets and other public facilities including installation of electricity and 5 empty shipping containers which he fabricated into 23 shops.

5. He thereafter procured subtenants who have been paying rent to him whereupon he pays rent to the landlord.

6. The agreed monthly rent is Kshs.50,000/- which the tenant has been faithfully paying to the landlord.

7. On 14th August 2020, the tenant received a call from a director of the landlord alleging non payment of rent and a meeting was held to discuss a payment plan thereof which the tenant has been adhering to by paying into the landlord’s bank account. Agreement on payment is summarized in annexture PW2.

8. On 1st May 2021, the landlord’s agents went to the suit premises and delivered letters to subtenants requiring them to immediately vacate the premises on grounds that the same had been transferred to a third party.

9. No communication in that regard had been made to the tenant and no notice of termination of tenancy had been served upon him.

10. No order from this tribunal had been sought to obtain vacant possession by the landlord.

11. It is against the foregoing backdrop that the tenant approached this tribunal for redress.

12. By a replying affidavit sworn by Chris Amimo, a director of the landlord, the application is opposed on the basis that due to rent arrears, the landlord instructed Bealine Kenya Auctioneers to levy distress for rent against the applicant as a result of which 5 shipping containers and 2 water tanks belonging to the applicant were attached and auctioned as per annextures “CA 1-5”.

13. It is deposed that the said goods were sold to one Charles Kaaria Kaburu in Situ. After the auction, the Applicant is said to have abandoned the premises.

14. The landlord depose that after the auction, Charles Kaaria Kaburu expressed interest in the suit premises as a result of which it entered into a lease agreement with him on 28th April 2021 which is marked annexture “CA 6”.

15. It is the landlord’s case that the new tenant paid the May 2021 rent as well as deposit and took possession on 1st May 2021 and as such the Applicant was not a tenant at the time of filing the instant suit.

16. The Applicant filed a further affidavit sworn on 15th June 2021 in which he denies knowledge of the contents of paragraphs 5 to 9 of the replying affidavit. He maintains that he is still a tenant and has been paying his rent of Kshs.50,000/- including the month of May 2021 as per deposit slips marked PMW-1.

17. The Applicant refers to an affidavit sworn by one Charles Kaaria Kaburu which I cannot trace from the court’s record. The said person is not even a party in the instant proceedings.

18. The landlord filed what is described as “supplementary replying affidavit” sworn on 8th June 2021 by Chris Amimo wherein he maintains that the suit premises were let out to one Charles Kaaria Kaburu and that the applicant used to be its tenant and therefore had its bank account details where he used to pay rent.

19. He deposes that the landlord was unaware of any payment into the ban account by the Applicant and has only learnt about it from the further affidavit filed on 15/6/2021.

20. It is the landlord’s case that the payments were refunded to the Applicant via Mpesa through his telephone number as per annexture “CA1”.

21. The application was directed to be disposed of by way of written submissions. Both parties complied by filing submissions.

22. The issues for determination in the application before me are as follows:-

(a) Whether the Applicant is entitled to a temporary injunction as prayed.

(b) Who is liable to pay costs?

23. It is not in dispute that the Applicant occupied the suit premises as a tenant of the landlord when it was vacant.

24. The applicant brought shipping containers and two water tanks among other developments to the suit premises.

25. The Applicant admits falling into arrears whereupon he entered into an oral arrangement on how the same would be cleared and was in the process of liquidating the same when the events complained of took place.

26. There is no dispute that the tenancy between the landlord and the tenant is controlled and as such could only be terminated by following the procedure enshrined in Cap. 301, Laws of Kenya.

27. Section 4 (1) of the said Act provides that notwithstanding the provisions of any other written law no controlled tenancy shall terminate or be terminated and no term or condition in or right or service enjoyed by the tenant shall be altered otherwise than in accordance with the provisions of the Act.

28. Section 4(2) thereof provides that 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.

29. Although the landlord maintains that the applicant is no longer its tenant, no tenancy notice has been exhibited by it terminating the tenancy relationship entered into with the tenant.

30. In absence of such a notice, I find and hold that the Applicant is still a tenant of the Respondent and any attempt to treat him otherwise is illegal, null and void.

31. Any relationship entered into with third parties in regard to the demised premises flies in the face of Cap. 301, Laws of Kenya and cannot be countenanced by this Tribunal.

32. In view of the foregoing findings, I find and hold that the Applicant has established a prima facie case with a probability of success in line with the decision in Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358.

33. I also hold that this Tribunal having been established to inter-alia protect tenants of controlled tenancies from eviction or from exploitation shall have abdicated its responsibility if it was to deny the tenant such protection at the risk of suffering an illegality.

34. I therefore further hold that the risk of a party suffering an illegality in the face of a threatened eviction amounts to irreparable loss and damage. In this regard, I am guided by the court of appeal decision in the case of Thomson Smith Alkman, Alan Malloy & others – vs- Muchoki & others (1982) eKLR at page 4/6 where it held as follows:

“The conditions spelled out above for the grant of an interlocutory injunction were rightly understood but wrongly applied as follows, the appellants being lawfully in possession of the estates under the authority of the debentures executed by Mbo and Loresho and the defendants having unlawfully seized and continuing in possession of the estates, the appellants had shown a clear and overwhelming prima facie probability of success, the court ought never to condone and allow to continue flouting of the law. Those who flout the law by infringing the rightful title of others, and brazenly admit it, ought to be restrained by injunction. If I am adding a new dimension for the grant of an interlocutory injunction, be it so. Equity will not assist law-breakers’…………………………………. I will not subscribe to a theory that a wrong doer can keep what he has taken because he can pay for it. The real injury arose from the unlawful seizure of the estates by the defendants in defiance of the law”.

35. Even if I was in doubt about the foregoing principles, the balance of convenience tilts heavily in favour of maintaining the landlord/tenant relationship created between the Applicant and the Respondent.

36. In the premises, I make the following orders:-

(a) The application dated 3rd May 2021 is hereby allowed in terms of prayers 3 and 4 thereof.

(b) The applicant shall get costs of the application against the Respondent.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 13TH DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Mr. Nganga for the Landlord

No appearance for the Tenant

Further Mention on 4/10/2021 for fixing a date for hearing and taking directions.

Mention notice to issue.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

13/9/2021.