[2021] KEBPRT 128 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E303 OF 2021 (NAIROBI)

ROSE WAITHIRA MUHORO.............................................................1ST APPLICANT/TENANT

BECKIE WANGECI WAGARA.........................................................2ND APPLICANT/TENANT

VERSUS

EVERYTHING INVESTMENT LIMITED................................RESPONDENT/LANDLORD

RULING

1. Through an application dated 13th July 2021, the Applicants are seeking for a temporary injunction to restrain the Respondent from evicting them pending hearing and determination of the suit herein.

2. The Applicants are further seeking that the Respondent be ordered to pay for the loss incurred during the period the premises was locked illegally and electricity disconnected.

3. Prayer 3 was granted ex-parte and does not therefore fall for determination.

4. The application is supported by the affidavit of 2nd Applicant sworn on 12th July 2021 and the grounds set out on the face of the application.

5. The 2nd Applicant deposes that she is a tenant in a property managed by the Respondent situate in Dagoretti Corner where she carries out the business of Wines and Spirits.

6. The property was let to one Lucy Wahu who is alleged to be the 2nd Applicant’s partner. Sometimes in June 2021, the 2nd Applicant wrote a letter of termination to the Respondent due to the fact that she was experiencing a problem with running of the business due to Covid-19 pandemic and wanted refund of the deposit to enable her vacate the premises.

7. The Respondent is said to have refused to receive the letter as a result of which the 2nd Applicant approached the 1st Applicant who agreed to advance her Kshs.178,000/- to stock the business on condition that the latter would henceforth manage the business.

8. As a result, the 2nd Applicant agreed to the offer by the 1st Applicant and advised her to continue paying rent as before.

9. However at the end of June and without notice, the management disconnected lights to the premises. Attempts to reach out to the caretaker and management was in vain.

10. On 6th June 2021, the management demanded the Applicants to vacate the suit premises and on 7th June 2021, the 1st Applicant found the same locked without notice. This provoked the instant proceedings.

11. The application is opposed through a replying affidavit sworn on 9th August 2021 by one Bedan Gituku a director of the Respondent Company. It is denied that the Applicants are Tenants or persons known to the Respondent.

12. According to the Respondent, the suit premises being shops no. 113 and 115 were leased to one Laura Lucy Wahu Mbugua in May 2020 for Wines and Spirits business at a monthly rent of Kshs.28,000/-. No written agreement was made with the Respondent as intended.

13. She dutifully paid rent as a sole tenant of the premises and had no problems with the landlord. In the month of May 2021, she approached the Respondent’s caretaker one Godfrey Kariuki and informed him that her business was not doing well and she therefore wished to surrender back the premises.

14. She issued a written notice marked “BG-1” dated 1st June 2021 and requested to utilize her security deposit as rent for the month of June 2021 which request was acceded to on the understanding that she would handover vacant possession on or before 30th June 2021.

15. She however vacated on 24th June 2021 and removed all her belongings from the suit premises in the presence of the caretaker. She was to handover the keys later.

16. On the night of 30th June 2021, at about 10 p.m. the 1st Applicant in the company of 4 men in a GK Landcruiser delivered an assortment of furniture and other goods to the premises. On being questioned by the watchman the 1st Applicant stated that she was a tenant delivering stock to her premises. The watchman contacted the caretaker and reported the incident to him. The latter promised to deal with the issue the following day.

17. The following day, the caretaker found the 1st Applicant and two men arranging furniture in the suit premises and on enquiry, she said that she was a business partner of the former tenant and that she would be the new tenant. It is then that it was resolved to close the premises.

18. On being reached on phone, the former tenant denied that the 1st Applicant was her business partner. Electricity to the premises was disconnected as the Applicants were clearly trespassers in the premises.

19. A new tenant had already been identified for the premises by the name Margaret Mburu who had paid 2 month’s rent deposit on 24th June 2021 after the initial tenant vacated.

20. On 30th July 2021, the 1st Applicant went to the premises with police officers and broke in using orders obtained herein without prior service thereof upon the Respondent.

21. According to the Respondent, the application was filed on 14th July 2021 long before the reference which was filed on 26th July 2021 and the interim orders ought not to have been issued.

22. There was no evidence that the Applicants were tenants in form of rent payment or liquor licence in their name. Finally the Respondent contends that the Applicants have not demonstrated any merit for the exercise of discretion in their favour.

23. I have seen the affidavits sworn on 9th August 2021 by Godffrey Kariuki (caretaker) and Margaret Mburu (incoming tenant) whose contents support depositions made by Bedan Gituku and I need not reproduce their contents herein as such an approach would be repetitive.

24. The Respondent also filed grounds of opposition dated 9th August 2021 whose contents are already captured in the analysis of the affidavit of Bedan Gituku.

25. Both parties filed submissions in line with the directions given on 26th August 2021.

26. Having considered the pleadings and submissions filed herein, the following issues emerge for determination:-

(a) Whether there exists a landlord/tenant relationship between the Respondent and the Applicants herein.

(b) Whether the Applicants are entitled to the orders sought herein.

(c) Who is liable to pay costs of the application?.

27. I have looked at the evidence presented by both parties herein and I am of the view that the three (3) issues being intertwined ought to be determined together.

28. It is admitted that the suit premises were leased out to one Laura Wahu Mbugua. Although the 2nd Applicant states that the said Laura Wahu Mbugua was her business partner, no evidence was tendered to prove the same.

29. Secondly, the termination notice dated 1st June 2021 written by Laura Wahu Mbugua has not been disputed. The fact that she vacated the premises on 24th June 2021 has not been controverted. Having vacated from the premises, she had no capacity to bring in another person to operate from the suit premises.

30. It is peculiar that the said Laura Wahu Mbugua has not sworn an affidavit in support of the Applicant’s allegation that she handed over the premises to be run as a joint business venture. Sections 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya squarely put the burden of proof on them to do so.

31. In any event, the Applicants have not shown any proof of payment of rent or any evidence of existence of a landlord/tenant relationship with the Respondent. In absence of such evidence, their case amounts to “clutching at straws”. It has no legs to stand on.

32. When the Respondent locked the premises and disconnected electricity, it was exercising the rights of a landowner ejecting a trespasser using reasonable force which is acceptable in law. Had the Applicants disclosed the true state of affairs, I believe that this Tribunal could not have granted the exparte orders it did in favour of the Applicants had this been known.

33. The reference herein having been filed by persons who have no relationship with the respondent was a non-starter from inception. It is a clear abuse of court process.

34. Having failed to demonstrate that there was a landlord/tenant relationship between them and the Respondent, the Applicants are disentitled to the orders sought in the application. They came to court with unclean hands and as such are disentitled to the equitable remedy of an injunction (see the case of Kyangavo – vs- Kenya Commercial Bank Ltd and Another (2004) 1 KLR 126).

35. The Applicant’s failure to disclose the true state of affairs of how they came into the suit premises at the time of obtaining the ex-parte orders herein amounted to concealment of material facts relevant to the case which is fatal to their case. In this regard, I seek to rely on the case of Gabriel Kariuki Gitonga & 2 others – vs- Redken wells Ltd & 11 others (2021) eKLR at paragraph 9 where the court cited with approval the case of the King – vs- The General commissioners for the purposes of income Tax Acts for the District of Kensington ex-parte princess Edmond De Pilgac (1917) IKB 486 wherein Warrington L.J stated at page 509 as follows:-

“It is perfectly well settled that a person who makes an ex-parte application to the court, that is to say, in the absence of the person who will be affected by that which the court is asked to do is under obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage he may have already obtained. That is perfectly plain and requires no authority to justify it”.

36. In the premises and in line with the provisions of section 12(1) (a) and (e) 12 (4) of Cap. 301, Laws of Kenya, I make the following orders:-

(a) The application dated 12th July 2021 is hereby dismissed with costs.

(b) The orders given on 28th July 2021 are hereby vacated and discharged.

(c) The Applicants shall immediately handover vacant possession of the suit premises to the Respondent failing which they shall be forcibly removed therefrom by a licensed auctioneer. Costs shall be accorded security by the OCS within whose jurisdiction the premises are situate.

(d) The Applicant’s reference dated 26th July 2021 is hereby struck out with costs to the Respondent.

(e) Pursuant to section 13 of Cap. 301, the Applicants shall pay Kshs.105,000/- being compensation for 2 ½ months they illegally occupied the suit premises to the Respondent.

(f) The Respondent’s costs of Kshs.50,000/- shall be paid by the Applicants.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 14TH DAY OF OCTOBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

NJOROGE FOR THE TENANTS/APPLICANTS

MBUGUA HOLDING BRIEF FOR KABIRU FOR LNADLORD/RESPONDENT