[2021] KEBPRT 343 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 1126 OF 2019 (NAIROBI)

PURITY NJERI KINYANJUI T/APUB DEROCKERS.........TENANT

VERSUS

INDERPAL SINGH.......................................................1ST LANDLORD

ADDY KAMUR.............................................................2ND LANDLORD

HEBROS AUCTIONEER...............................................AUCTIONEER

RULING

1. By their application dated 7th May 2021, the Landlords have moved this Tribunal seeking review and setting aside of the orders of 18th February 2020 restraining them from distressing for rent at the premises known as Pub Derockers Bar & Restaurant situated at Ngara within L.R No. 209/2490/4.

2. They further seek that the order issued on 3rd March 2020 that the status quo be maintained be reviewed and or set aside.

3. Prayers 4 & 5 seek that the Tenant be directed to pay the Landlord a sum of Kshs.980,000/- being arrears of rent or accrued rent as at May 2021 and indefault the Landlord be permitted to levy distress on the Tenant’s goods in the premises.

4. Prayer 6 seeks to restrain the tenant from demolishing, pulling down, removing or otherwise damaging the walls, partitions, doors and or fixtures of the premises.

5. In the alternative, the Landlords seeks that the tenant be ordered to deliver vacant possession of the premises and that the O.C.S Pangani Police Station ensures compliance with the orders issued herein.

6. The application is supported by the affidavit of Inder Singh Kular (1st Landlord) which annexes a licence agreement dated 1st March 2019 marked Exhibit LSK 1 showing that the reserved rent was Kshs.50,000/- payable on or before 5th day of each month.

7. On 18th February 2020, the Tribunal issued restraining orders against the Landlords from distressing for rent and on 3rd March 2020, a further order of status quo was also issued.

8. As a result, the Tenant has accumulated rent arrears to the tune of Kshs.980,000/- as at May 2021 as per the statement of rent account marked lsk4.

9. It is the Landlords’ case that although the two orders did not stop the Tenant from paying rent, she had not paid a single cent ever since.

10. On 19th April 2021, the 1st Landlord visited the premises and found the Tenant demolishing, pulling down, removing and damaging the walls, partitions and fixtures therein which can be seen in photographs marked exhibit 1sk5.

11. The Tenant is alleged to have taken advantage of the two orders to occupy and carry on business in the suit premises without paying rent and has embarked on demolishing the walls and partitions thereby affecting the structural integrity of the building not to mention interfering with the quiet enjoyment and use of adjoining premises.

12. The Tenant swore a replying affidavit on 25th May 2021 stating that the Tribunal ordered return of her goods carried by the auctioneer but the Landlord refused to do so.

13. According to the Tenant, the status quo order was to facilitate reconciliation of rent accounts by both parties and that she contacted the Landlord to no avail.

14. She denies demolishing the walls, partitions, doors and/or fixtures in the suit premises.

15. She also denies signing the licence agreement marked 1sk1 and states that the signature therein is a forgery.

16. The Tenant contends that she was dealing with the previous Landlord through her agent one Esther Wangari Kuria.

17. She claims that the photographs exhibited by the Landlords related to her kitchen which was vandalized by the Auctioneers sent by the 1st Landlord.

18. The 1st Landlord swore a further affidavit on 11th June 2021 in which it is deposed that all the goods ordered to be returned by the 3rd Respondent were actually returned pursuant to the Tribunal order.

19. On 6th March 2020, a handwritten statement was issued to the Tenant but she did not respond thereto.

20. The 1st Respondent contends that the Tenant signed the licence agreement which bears her identity card number and all her other details.

21. The 1st Respondent refers to the supporting affidavit filed on 17th April 2020 in which the Tenant states that she had a good relationship with the 2nd Respondent and that she promptly paid the agreed rent of Kshs.50,000/-.

22. The 1st Respondent states that Manmohan Singh is his father who is resident in India and has never dealt with the Tenant.

23. He further maintains that the photographs attached to the supporting affidavit were actually taken on 19th April 2021 when the Tenant was carrying out the demolitions.

24. I am now called upon to determine whether or not the application dated 7th May 2021 should be granted. Secondly I am required to determine who is liable to pay costs.

25. The first ground upon which the current application is premised is that the Tenant has not paid rent ever since she obtained the orders sought to be set aside.

26. I have examined the two orders and nowhere was the Tenant allowed to continue enjoying the demised premises without rent payment.

27. One of the cardinal obligations of a Tenant is to pay the reserved rent as and when the same becomes due and payable. It would be ridiculous for a court of equity to grant a Tenant or a party the right to equitable protection so as to avoid his/her obligation under a tenancy contract. This Tribunal cannot equally do so as whoever comes to equity must do equity.

28. In the case of Samuel Kipkori Ngeno & Another – vs- Local authorities Pension Trust (Registered Trustees) & Another (2013) eKLRthe Superior court at paragraphs 9 & 12 had the following to state on the issue of non payment of rent:-

“9. A tenant’s first and main obligation is to pay rent as and when it becomes due, for the Landlord has the right to an income from his investment. Why would a tenant allow himself to fall into such huge arrears of rent?.

“12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is underserving of the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due”.

29. The 1st Applicant deposes that as at May 2021, the Tenant was in arrears of rent of Kshs.980,000/- which continued to accrue at a rate of Kshs.50,000/- per month meaning that it currently stands at Kshs.1,080,000/- as at 31st July 2021 assuming that no payment has been made since then.

30. This amount is colossal and is said to date back to March 2019. The tenant has not provided evidence that she has paid the amount claimed by way of production of deposit slips or otherwise.

31. The Tenants defence in the face of the allegation that she has not paid rent is simply that the Landlord failed to sit down with her for purposes of reconciliation of the rent account. This claim is hollow and untenable as nothing would have stopped her from adducing evidence of payment of the claimed amount/arrears.

32. The Tenant’s allegation that the 1st and 2nd Respondents are not her Landlords and that she did not execute the licence agreement dated 1st March 2019 is unbelievable in view of the fact that the rent set out therein corresponds with the rent she admits to be payable for the premises per month and the agreement has not been challenged in any proceedings.

33. In any event, whether the agreement existed or not would not change the obligation to pay rent.

34. In regard to Tenant’s claim that the Landlord is one Manmohan Singh and not the 1st and 2nd Respondents, it has not been proved that she has ever made any rent payment to him. The introduction of the said name is escapist and purely intended to muddy the pure steams of justice and obscure her non payment of rent. I refuse to be led into that path.

35. As regards alleged demolition and damaging of walls and partitions in the suit premises, I have observed the photographs annexed to the supporting affidavit which are in black and white and I am unable to tell whether the same depict ongoing demolitions or not.

36. Since the Tenant denies, the same and does not state that she will be in any way prejudiced if the order sought in this regard is granted, I consider that there shall be no harm in granting the same in order to preserve the substratum of the suit.

37. In regard to the order for vacant possession, I note that the Landlords have not demonstrated or exhibited any notice to terminate tenancy under section 4 of Cap. 301 as read with section 7 thereof on grounds of non payment of rent for a period of over 2 months and I am therefore unable to invoke the Tribunal’s jurisdiction under Section 12 of the Act by ordering her to vacate.

38. In the premises and in line with the foregoing findings and analysis, I make the following orders:-

(i) Prayers 2,3,4,5,6 & 8 of the application dated 7th May 2021 are hereby granted.

(ii) Costs of the application assessed at Kshs.15,000/- are awarded to the Landlords/Applicants.

(iii) Prayer 7 of the application is denied but the Landlords shall be at liberty to issue the requisite notice for termination of tenancy at anytime if they so desire.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 6TH DAY OF AUGUST 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Mr. Kinyua for the Tenant

Miss Awori holding brief for Mr. Ombati for the Landlord