[2021] KEEAT 298 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 654 OF 2020 (ELDORET)

ROSS JAY SALON.....................................................................APPLICANT/TENANT

VERSUS

GATATHA FARMERS CO-OPERATIVE SOCIETY..... 1ST RESPONDENT/LANDLORD

NYALUNGA TRADERS............................................... 2ND RESPONDENT/AUCTIONEERS

RULING

1. By a motion dated 3rd July 2020, the Tenant is seeking for restraining orders against the Respondents from levying distress, evicting, harassing, disconnecting water/electricity, threatening and/or intimidating the tenant or interfering with the peaceful exercise of her rights under the tenancy pending hearing of the application and any other matter related thereto.

2. The Tenant further seeks that the Landlord be restrained from demanding the contested Kshs.4,375,671/- in rent arrears based on the contested monthly rent pending hearing of the rent reassessment.

3. Thirdly, the Tenant is seeking that the 2nd Respondent auctioneer be restrained from demanding the sum of Kshs.462,500/- in auctioneer’s charges based on contested rent arrears.

4. Finally, she seeks that the OCS, Central Police Station ensures compliance and that peace prevails.

5. Prayers 2, 4 and 5 were granted ex-parte pending the hearing and determination of the application.

6. The application is supported by the affidavit of Silpher Adero who is the actual Applicant sworn on 3rd July 2020 wherein she avers that her properties were proclaimed over a claim of Kshs.4,375,671/- in rent arrears which are contested in BPRT case no. 523 of 2019 (Nairobi)

7. According to the Tenant, she has been a law abiding tenant until the Landlord locked up her business premise for over six months denying her access thereby interfering with conduct of lawful business and generation of income.

8. It is the Tenant’s case that the Landlord has been overcharging rent pursuant to which she sought for rent reassessment by the Tribunal which matter is pending before this court.

9. The Tenant’s goods were proclaimed in recovery of rent arrears after being unable to pay rent regularly because of the current economic circumstances.

10. The Tenant states that she was willing to pay the arrears in three (3) instalments within a period of 180 days.

11. It is her case that the Landlord has been harassing and disconnecting water and electricity despite the suit premises being in a state of neglect with leaking roofs and gutters making it barely habitable.

12. The application is opposed through the affidavit of Peter M. Gakwa sworn on 13th July 2020 on behalf of the 1st Respondent as a director thereof.

13. According to the Respondents, the Tenant pays Kshs.100,000/- per month and from January 2018, she has not paid a single cent as per the statement of account marked PMG1.

14. It is admitted that a notice of rent reassessment from Kshs.100,000/- to Kshs.60,000/- per month was issued which is the subject matter of BPRT No.862 of 2019 (Nairobi) and not 523 of 2019 as alleged by the Tenant.

15. It is the Landlord’s case that the pendency of reassessment case does not bar the Tenant from paying rent and the distress levied is within the law.

16. In any event, the Tenant has admitted being in rent arrears and that at no time was the premises closed by the Landlord as no complaint was ever filed to that effect before this Tribunal.

17. In regard to the Auctioneers charges, the Respondents contend that the same are charged on the lower scale taking into consideration the provisions of form 2 Cap. 526, Laws of Kenya.

18. On 14th June 2021, the Tenant filed another application dated 11th June 2021 seeking various orders. Prayers 2, 3 & 5 were granted at the ex-parte stage and are therefore spent.

19. Prayer 4 seeks for a temporary injunction to issue restraining the Landlord from interfering with the peace and quiet enjoyment of the Tenant or eviction of the Tenant from the business premises pending hearing and determination of the reference.

20. The application is supported by the affidavit of Silpher Adero sworn on 11th June 2021 whose contents I need not reproduce herein.

21. A replying affidavit sworn by Peter M. Gakwa on 18th June 2021 was filed in opposition to the application stating that Gatatha Farmers Co-operative Society was unknown to Gatatha Farmers Company Ltd which is the correct Landlord.

22. It is the Respondents’ case that the Tenant is in rent arrears of Kshs.5,400,000/-.

23. By yet another application dated 5th July 2021, the Tenant is seeking for various orders against the Respondents.

24. Prayer 2 seeks that she be allowed to apply and install an electricity meter from Kenya Power & Lighting company at the suit premises to enable efficient running of the business.

25. She is also seeking to be allowed to apply and install a water meter from Nairobi Water and Sewerage Company at the suit premises to enable efficient running of the business and the costs of installations of both electricity and water meters be deducted from rent.

26. She also seeks that the Respondents be held in contempt of the orders issued on 15th June 2021.

27. Prayer 7 seeks that a temporary injunction do issue restraining the Landlord from interfering with the peace and quiet enjoyment of the Tenant and/or evicting the Tenant from the business premises pending the hearing and determination the of reference herein.

28. The Tenant filed a further affidavit sworn on 14/7/2021 stating that there was a technical error in the name of 1st Respondent by naming it as Gatatha farmers Cooperative Society Limited instead of Gatatha Farmers Company Ltd which does not in any way affect the facts in issue as the Landlord has not disputed that she was a Tenant running a salon known as Ross Jay salon in the suit premises.

29. In regard to the allegation that she had not paid a single cent in rent since January 2018, the Tenant has attached a deposit slip of Kshs.117,000/- made on 26th July 2021.

30. Parties were directed on 26th July, 2021 to file written submissions on the part of the Tenant/Applicant only as the Respondents’ counsel indicated that he would rely on the affidavits already on record.

31. I am now called upon to determine whether to allow the three (3) applications or to dismiss the same.

32. I have looked at the pleadings as well as the Tenant’s submissions and make the following findings:-

(i) There is no evidence that the Tenant has been paying rent in respect of the suit premises from January 2018 to date except a sum of Kshs.117,000/- paid on 26/7/2021 in the pendency of these proceedings.

(ii) There is no order issued in Nairobi BPRT No. 862 of 2019 wherein the Tenant seeks reassessment of rent allowing the same or staying recovery of the reserved monthly rent of Kshs.100,000/- against her by the Landlord.

(iii) The Tenant has admitted being in rent arrears and as such the Landlord was entitled to levy distress for rent under section 3 of the Distress for Rent Act Cap 293, Laws of Kenya.

(iv) There is no evidence on record to show that the suit premises had been closed by the Landlord for six (6) months as alleged by the Tenant.

(v) Had the premises been closed, the Tenant was at liberty to apply for reopening of the same before this Tribunal which was not done.

(vi) There is need for the Auctioneer to file his bill of costs in this Tribunal for assessment to avoid the possibility of an overcharge.

(vii) Save for the proclamation of attachment by way of distress for rent, there is no evidence that the Landlord has been interfering with operation of the Tenant’s business in the suit premises.

(viii) The Tenant’s application to be allowed to install her own water and electricity meters has not been opposed by the Landlord and is for allowing.

(ix) The cost of installation of the water and electricity meters shall be borne by the Tenant as no justification has been advanced why the same should be borne by the Landlord.

(x) The error in the name of the Landlord is a technical one which I shall allow to be corrected so as to read Gatatha Farmers Co. Ltd in line with Article 159 of the Constitution of Kenya, 2010.

(xi) The prayer to find the Respondents as being in contempt of court is improperly before this Tribunal by dint of Section 12 (2) of Cap. 301 Laws of Kenya as read with Section 5 of the Judicature Act.

(xii) The Tenant has failed to bring herself within the principles of granting an injunction as espoused in Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358.

33. Before concluding this ruling, I wish to adopt what the superior court stated in the case of Samuel Kipkori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR at paragraphs 9 and 12 as follows:-

“ 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….”

“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 the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principle obligation of paying rent as and when it becomes due”.

34. The upshot of my foregoing analysis is as follows:

(a) The prayers for temporary injunction in the applications dated 3rd July 2020, 11th June 2020 and 5th July 2021 are hereby dismissed.

(b) The Auctioneer shall file his/her bill of costs in this Tribunal for assessment.

(c) The tenant is hereby authorized to install her own electricity and water meters at own cost and the Landlord is directed to execute all necessary documents to facilitate the same forthwith.

(d) The name of the 1st Landlord/Respondent shall be corrected to read “Gatatha Farmers Company Limited” in all court documents issued forthwith.

(e) The prayer for contempt of court order is hereby denied for want of jurisdiction.

(f) The tenant shall pay costs of Kshs.30,000/- for the applications to the landlord/1st Respondent all inclusive.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 1ST DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Owora holding brief for Miss Opiyo for Tenant/Applicant

No appearance for the Landlord/Respondent