[2024] KEBPRT 382 (KLR)

Richard & another v Okeyo (Tribunal Case E972 of 2023) [2024] KEBPRT 382 (KLR) (27 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 382 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E972 of 2023

N Wahome, Member

February 27, 2024

KENYA RE: TOWERS GROUND FLOOR

Between

Elizabeth Wairimu Richard

1st Tenant

Ann Njeri Richard

2nd Tenant

and

Collins Omondi Okeyo

Respondent

Ruling

1. The Applicants initiated the suit herein by way of a reference dated 5/10/2023. The same was said to be founded on Section 12(4) of the Landlord and Tenant(Shops, Hotels and Catering Establishments) Act (Cap. 301) hereinafter referred to as “the Act”. Accompanying the reference was the Notice of motion of even date supported by a massive certificate of urgency also dated 5/10/2023.

2. The grievances raised in the reference to quote verbatim were that:-“The landlord without justifiable reasons whatsoever has trespassed my business suit premises unlawfully and I would be pleased if the landlord is restrained from trespassing my business suit premises”.

3. The Notice of Motion sought for a total of 13 reliefs but which principally are that:-(i)The Respondent be restrained from in anyway curtailing their enjoyment of the demised premises to include issuing of threats, illegal eviction notices and general harassment of the Applicants.(ii)The Respondent be ordered to respect the lease agreement between the parties marked X1 to X16. (iii)Any orders issued by this court be effected by the OCS Imara Daima Police Station and that they be paid the costs of the suit.

4. The Applicants further filed what was titled further replying affidavit sworn on the 13/12/2023, a supplementary affidavit sworn on 13/12/2023 and further filed Applicant’s written submissions dated 24/1/2024 and list of authorities of even date. On his part, the respondent filed the replying affidavit sworn o the 23/10/2023, the Respondents further replying affidavit and the submissions both dated 19/1/2024 but by obvious error dated 19/1/2023.

A. The Case for the Tenant 5. The case for the Tenant is that:(i)The respondent is encroaching on the demised premises within LR No. 209/20798 against their lease agreement marked “X1” to “X16” which was for 10 years.(ii)She has been meeting all her cardinal obligations of paying rent and on time and therefore deserved quiet enjoyment of the demised premises,(iii)The respondent is carrying out developments on the demised premises without her consent and which is adversely affecting her business.(iv)By his actions the respondent intended to evict her from the demised premises,(iv)The Tenancy between the parties was a controlled one and she needed the protection of this court.(v)The Respondent should therefore be restrained from any interference whatsoever from her quiet enjoyment of the demised premises.(vi)The Tenant further in their submissions cited the following case law in support of the Application herein:-(a)Mohamed Noor Adbullahi v al Sawan Mohamed Abdulqader & Another (2021) eKLR,(b)Dlux Limited v Edna Shadrack Ouma & Another (2021) eKLR,(c)Mrao Ltd (2015) v First American Bank of Kenya & 2 Others (2003) eKLR 125,(d)Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) eKLR.(e)Kenleb Cons. Ltd v New Gatitu Station & Another and(f)Giella v Cassman Brown & Co. Ltd (1973) EA 358.

B. The Case for the Landlord 6. The landlord on his part asserted that:(i)Its lease agreement with the 1st Applicant was for 3 years and the 2nd Applicant was a stranger to him.(ii)The developments he was carrying out were innocent as per the development plans for LR No. 209/20798 and was for the benefit of all tenants.(iii)The developments being carried out were commenced after all the tenants were notified of the same and were being carried out without undue interference with the businesses of the Tenants.(iv)The Tenant was erratic in her payment of rent and was in arrears for three (3) months at the time of coming to court.(v)He had not issued any notice to terminate the tenancy and that he was entitled to levy distress to recover the outstanding rent.(vi)He denied that he was in disobedience of the court orders herein and challenged the Applicant to prove the same,(vii)That exhibit mark ‘x6’ did not qualify to show payment of rent.(viii)The applicants having annexed annexure X1 to X11 could not deny the landlord/Tenant relationship between the parties.(ix)The landlord in its submissions further relied on the following decided cases,(a)Owners of Motor Vessel “Lilians S” v Caltex Oil (Kenya) Limited (1989) KLR I,(b)Adero & Another v Ulinzi Sacco Society Ltd (2002) I KLR 577,(c)Republic v Business Premises Rent Tribunal & Another Ex-parte Albert Kigara Krome (2015) eKLR,(d)Al-Riaz International Ltd v Ganjoni Properties Limited (2015) eKLR, and(e)Mrao Ltd v First American Bank of Kenya Ltd & 2 Others(2003) eKLR.

7. Having taken keen consideration of the materials placed before me, am of the considered opinion that the issues necessary to determine this matter are the following,A.Whether this Tribunal has the jurisdiction to determine this matter.B.Whether the Applicants application is merited.C.Who should bear the costs of this suit.

ISSUE NO. A Whether this Tribunal has the jurisdiction to determine this matter. 8. The jurisdiction of this court is founded on several provisions of the Actwhich includes Section 2(1) which provides that,“A controlled tenancy means a tenancy of a shop, hotel or catering establishment(a)Which has not been reduced into writing and which-(b)(i) is for a period not exceeding five (5) years, or(c)(ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof”.

9. Though the Applicant states that the Tenancy is for 10 years and the landlord indicates that it is for 3 years, the lease Agreement herein speaks for itself. Clause 2 of the lease agreement states that:-“The landlord/lessor agrees to sublease and the Tenant/lessee agrees to take a commercial space to erect a temporary structure measuring 58 by 7 ft on the commercial block erected on LR No.209/20798 (herein referred to as the premises “NO.3”) for a period of two (2) years commencing on the 1/2/2023 to the 1st Day of February the years 2025 and shall only be renewable if both parties agree”.

10. In the lease agreement, both parties entered into the same as Tenant on the part of the Applicant and as landlord on the part of the Respondent. Indeed both parties admitted their respective positions in their pleadings only for the landlord to retreat and claim lack of jurisdiction of this tribunal to preside over this matter in its submissions which are obviously not pleadings.

11. Under clause 2. 5 of the said lease agreement it had provided thus:-“If the landlord/lessor terminates the lease before its expiry the landlord/lessor will be responsible for all the tenant’s/lessee’s loses for the remaining period bounded by the lease and shall pay/refund the same before she vacates the premises. (profit and loss shall be worked on a monthly basis”.

12. Therefore even if the said lease agreement was for 10 years and which it is not, it would still have been a controlled tenancy under the jurisdiction of this Tribunal pursuant to Section 2(1) (b) (ii) of the Act and Clause 2. 5 of the said lease agreement.

13. This tribunal has therefore a legal obligation to interpret and enforce the parties intentions if entered into freely, voluntarily and without coercion or duress. None has been pleaded in this matter.In the case of:-David Cullen v Samuel Kiptalai & 2 others (2021) eKLR the court held that:-“this is what the parties entered into hence the terms were specific for the lease of a house. The Tribunal had no business rewriting the contract for the parties”.

14. Therefore even if the said lease agreement was for 10 years and which it is not, it would still have been a controlled tenancy under the jurisdiction of this Tribunal pursuant to Section 2(1) (b) (ii) of the Act and Clause 2. 5 of the said lease agreement.

15. This tribunal has therefore a legal obligation to interrupt and enforce the parties intentions if entered into freely, voluntarily and without coercion or duress. None has been pleaded in this matter.In the case of:-David Cullen v Samuel Kiptalai & 2 others (2021) eKLR the court held that:-“this is what the parties entered into hence the terms were specific for the lease of a house. The Tribunal had no business rewriting the contract for the parties”.

16. In the case of Housing Finance Company of Kenya Ltd v Njuguna KLR 1176 (CCK) the court held that:-“Courts shall not be the fora a where parties indulging in varying terms of their agreement with others will get sanction to enforce the varied contracts. Contracts belong to the parties and they are at liberty to negotiate and even vary the terms as and when they choose. This they must do together with the meeting of minds. If it appears to a court that one party varied the terms of a contract with another, without the knowledge, consent or otherwise of the other, and the other demonstrates that the contract did not permit such variation, this court will say no to the enforcement of such a contract”.

17. From the foregoing, I do without difficulty determine that the relationship between the 1st Applicant and the Respondent is a controlled tenancy as envisaged under Section 2(1) of the Act and that therefore this Tribunal is seized of the jurisdiction to preside over the matters in issue.

ISSUE NO. B. Whether the applicant application is merited. 18. At the outset, I am unable to appreciate why the 2nd Applicant is present in these proceedings. She is not a party to the lease agreement. She is also not a party in the reference dated 5/10/2023 which is between the 1st Applicant and the landlord. No grievances have also been raised in her name in the entire pleadings and I therefore proceed to strike her name from these proceedings. To say the least her name was a kin to a stray out bullet in this matter.

19. Under Clause 3. 9 of the lease Agreement, the lessor had the right to enter into the demised premises for the purpose of:,“Examining or doing such repairs, altering the condition thereof or doing such repairs, alterations, additions, improvements, renewals or other things as may be required to either the demised premises pursuant to the agreement”.

20. It follows then hat the claim of trespass against the respondent is unfounded as it is a right donated to him by the agreement between the parties. Indeed, the landlord has admitted that he was clearly carrying improvements at the demised premises in line with the development plans thereof. Further from materials on record, there is no evidence of intention to evict her from the demised premises.

21. In line with the principles set down in the case of Giella v Cassman Brown & Co. Ltd(1973) EA 358 and the case of Mrao v First American Bank of Kenya Ltd and 2 Others (2003) eKLR I doubt that the Applicant has satisfied any of the three (3) principles as settled on the grant of injunctions.These principles were stated as:_“First, an Applicant must show a prima facie case with a probability of success, secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience”.

22. In this matter, it is not alleged that the Respondent has actioned anything extrinsic to the agreement or lease between the parties. What the Respondent is accused of is infact what he is supposed to do under the lease agreement. The Applicant cannot therefore complain about the implementation of a lease agreement voluntarily entered into. I therefore find that her application is without merit and dismiss the same.

23. Having determined that, it follows that nothing is left of the reference dated 5/10/2023 and the same is determined in the same terms as the Application.

ISSUE NO. C- who should bear the costs of this suit. 24. Am not persuaded to depart from the conventional wisdom of Section 27 of the Civil Procedure Act and the Respondent being the successful party in this matter, I will award costs to him.

25. In conclusion, I make the following orders:-i.That the reference and application both dated 5/10/2023 are hereby dismissed.ii.The 1st Applicant shall pay costs to the Respondent assessed at Kshs.10,000/-.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY 2024. HON. NDEGWA WAHOME MBSMEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of Mr. Chacha for the Respondent/LandlordM/S Chepkemoi holding brief for Mr. Odero for the Applicant/TenantHON. NDEGWA WAHOME MBSMEMBERBUSINESS PREMISES RENT TRIBUNAL27/2/2024Court: The parties will be supplied with certified copies of the Ruling on payment of the requisite fees.HON. NDEGWA WAHOME MBSMEMBERBUSINESS PREMISES RENT TRIBUNAL27/2/2024