[2022] KEBPRT 757 (KLR)

Ring Road Juakali Garage Association v Maila & 5 others (Tribunal Case 942 of 2020) [2022] KEBPRT 757 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 757 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 942 of 2020

Gakuhi Chege, Vice Chair

September 19, 2022

Between

Ring Road Juakali Garage Association

Applicant

and

Donald Maila

1st Respondent

Daniel Omondi

2nd Respondent

Alfred Okumu

3rd Respondent

Maasiga Jode

4th Respondent

James Edward

5th Respondent

Benard Odhiambo

6th Respondent

Ruling

1. The landlord moved this tribunal under section 12(4) of cap301by a reference dated December 2, 2020 in which it complained that the tenants had failed to pay rent which continued to accumulate contrary to provisions of the Act.

2. The landlord simultaneously filed a motion of even date seeking leave to levy distress against the respondents for recovery of rent arrears amounting to Kshs695,135/- together with vacant possession of the suit premises. The landlord also sought for waiver of 10% fees on the distress order.

3. According to the landlord the respondents owed various amounts in rent arrears and had been giving false promises to pay. The respondents were indebted to the landlord as at December 2, 2021 as follows:-a.1st respondent at Kshs 147,035/-b.2nd respondent at Kshs 70,900/-c.3rd respondent at Kshs 179,400/-d.4th respondent at Kshs 147,000/-e.5th respondent at Kshs 68,300/-f.6th respondent at Kshs 82,100/-

4. On December 17, 2020 when the matter came up for directions, the 1st, 3rd, 5th respondents admitted owing Kshs 147,035/-, 179,400/- 68,300/- and 15,000/- respectively but the application was stood over to January 7, 2021.

5. On January 7, 2021, this tribunal allowed the landlord to levy distress and granted a waiver of 10% distress fees. However, in an interesting turn of events, the tenants through a motion dated February 5, 2021 moved the tribunal seeking to set aside the distress order on the grounds that the same was obtained irregularly. The application is supported by the affidavit of 3rd respondent which attaches as annexure ‘AO-1’ his rent deposit receipts amounting to Kshs 22,500/-. One of the receipts dated 27/1/2021 is a withdrawal slip. No other payment or deposit receipts are annexed to the application.

6. The application was directed to be served for hearing inter-partes on February 23, 2021. The same is opposed through the replying affidavit of Jacob Wadawe who deposes although the tenants pay individual rent, they were all in arrears and that they had admitted being indebted in court in a previous appearance.

7. As such, the application is said to be an afterthought and that only one tenant had made efforts to pay after the filing of the instant proceedings.

8. On April 13, 2021, the tenants filed yet another application seeking leave by M/S GS Law LLP Advocates to cease acting for them on account of lack of instructions. The application was directed to be served for hearing inter-partes on April 21, 2021 when the same was allowed.

9. On the said date, the tenants were directed to clear their outstanding rent within 21 days failing which the landlord was granted liberty to levy distress through a licensed Auctioneer.

10. On November 23, 2021, the landlord moved this tribunal seeking for police escort to be offered to Hariki Auctioneers to levy distress against the tenants. The order was granted on December 8, 2021.

11. On January 21, 2021, the 3rd tenant moved the tribunal seeking for setting aside the distress order on the ground that it was obtained irregularly. They also sought for restraining orders against the landlord from harassment of the 3rd respondent/tenant on the grounds that he was paying rent. He annexed payment deposit slips amounting to Kshs 57,000/-. Interim orders were granted on January 21, 2021.

12. The application is opposed through the replying affidavit of Jacob Oreny Wadawe wherein it is deposed that the 3rd tenant was in arrears of Kshs 191,400/- as at March 2, 2022 as per the rent account statement marked ‘JOW 8’.

13. On May 10, 2022, the firm of Magotsi Law applied for leave to respond to the landlord’s application dated November 23, 2021 and file submissions within 14 days.

14. The 3rd tenant filed a replying affidavit sworn on May 20, 2022 against the landlord’s applications dated December 2, 2021 wherein it is deposed that each tenant had a separate tenancy agreement with the landlord and that each paid rent individually and as such, the suit is defective for grouping the Respondents together in the suit.

15. According to the 3rd respondent, the landlord had not given clear and proper indication as to the amounts owed by them and the figures were not current.

16. Although parties were directed to file submissions, only the landlord’s and 3rd respondents submissions are on record. I shall consider the submissions together with the issues for determination.

17. The following issues arise for determination in this case:-a.Whether the landlord is entitled to the reliefs claimed in the application dated December 2, 2020 and the reference of even date.b.Whether the tenants are entitled to the reliefs sought in their applications dated February 5, 2021 and January 21, 2022. c.Who is liable to pay costs?

18. As observed above, the 1st, 3rd and 5th respondents appeared before this tribunal in person and admitted owing the amounts stated in paragraph 4 of this ruling. The other respondents did not appear and have not provided evidence of payment of rent neither have they filed any replying affidavits in opposition to the landlord’s claim.

19. It is instructive to note that only the 3rd tenant has provided some rent deposit slips before this tribunal against the landlord’s claim that he owed Kshs 191,400/- as at March 2, 2022 in terms of annexure ‘JOW 8’.

20. According to the 3rd respondent, the order allowing distress for rent against all the tenants would result in a miscarriage of justice as each has a separate contract and pay individual rent and grouping them together makes the suit defective.

21. According to the 3rd respondent, the landlord should have provided proper calculations as to the amounts subsequently paid by him against amounts paid before seeking to distress for rent.

22. In the case ofJulius Mogaka Gekonde T/A E-smart Technical College v Ouru Power Limited &another(2018) eKLR at paragraph 74, it was held as follows:-“74. I find that once the plaintiff has acknowledged that he is indeed in arrears of rent, it means that he is in breach of the most critical term of their tenancy and being a defaulting party, he cannot be seen to approach the court for an order of injunction which is an equitable relief/remedy only available to parties who come to court with clean hands”

23. On January 17, 2021, the 3rd tenant was one of the respondents who appeared before this tribunal and admitted being it rent arrears. He has not provided proof that he had cleared the sum of Kshs 179,400/- claimed in the application dated December 2, 2022.

24. Section 108 of the Evidence Act, cap 80 Laws of Kenya provides as follows:-“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”

25. I find and hold that all the Respondents having admitted indebtedness to the landlord have not proved that they have cleared their respective rent accounts in line with the foregoing provision of the Evidence Act.

26. Section 3(1) of the Distress for Rent Act, cap 293, grants a landlord the right to levy distress in case of any rent being in arrears and I am satisfied that the applicant/landlord was entitled to the orders given on January 7, 2021 and April 21, 2021 as the tenants are truly in rent arrears.

27. Conversely, the tenants are not entitled to the orders sought in their applications dated February 5, 2021 and January 21, 2022.

28. I do not find anything unprocedural in the landlord’s application dated December 2, 2020 in joining all the respondents in one application in view of order 1 rule 3 of the Civil Procedure Rules, 2010 which provides as follows:-“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise”.

29. In regard to costs, section 12(1) (k) of cap301, grants this Tribunal unfettered discretion to grant costs. I have no reasons to deny costs to the landlord.

30. Under section 12 (1) (e) of cap301, Laws of Kenya, this Tribunal has powers to make an order for the recovery of possession and for payment of rent arrears which may be applicable to any person whether or not he is a tenant being at any material time in occupation of the premises comprised in a controlled tenancy.

31. The tenants have not objected to the prayer for possession and being in breach of the most cardinal obligation under the tenancy by failing to pay rent are liable to be removed from the premises as prayed by the landlord.

32. In conclusion, I make the following final orders in this matter:-i.The Landlord’s application dated December 2, 2020 is allowed in terms of prayers 2, 3, 4 & 5 with costs.ii.The tenant’s applications dated 5th February 2021 and January 21, 2022 are hereby dismissed with costs.iii.The tenants will pay Kshs 25,000/- as costs of the case jointly and/or severally.iv.The reference by the landlord is marked as settled.It is so ordered.

RULING SIGNED & DELIVERED THIS 19TH DAY OF SEPTEMBER 2022 VIRTUALLY.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Miss Muya for LandlordNo appearance for the Tenants/Respondents