[2021] KEBPRT 34 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 53 OF 2021 (NAIROBI)

SAMUEL NDEGWA T/A ABERDARE RESORT.... TENANT/APPLICANT

VERSUS

NICKSON MUIRURI..................................1ST RESPONDENT/LANDLORD

LUCY MUTHONI ICHUGA.....................2ND RESPONDENT/LANDLORD

NASIOKI AUCTIONEERS.............................................. 3RD RESPONDENT

RULING

1. Through a motion dated 19th April 2021, the tenant moved this Tribunal seeking for restraining orders against the Respondents from interfering with his peaceful occupation of the suit premises pending hearing and determination of the case.

2. He further seeks that the 3rd Respondent be restrained from attaching his property or selling the same by public auction and that the OCS, Central Police Station ensures compliance with the order.

3. The application is supported by the affidavit of Applicant sworn on even date and the grounds on the face thereof. The gist of the application is that on 16th March 2021, the tenant was served with a proclamation of distraint of movable property for a sum of Kshs.725,000/- plus auctioneers charges of Kshs.125,000/-.

4. The tenant is in possession of the suit premises situate on L.R No. Nakuru Municipality Block 22/660 (Muguga) paying a monthly rent of Kshs.90,000/- where he runs Aberdare Resort. The said property originally belonged to the late Hudson Karega Muiruri (deceased) upon whose demise it transmitted to Mary Wambui Mwangi who also died and finally to Hannah Mumbi Karega who is also deceased.

5. The premises are currently run by the 1st and 2nd Respondents who share monthly rent with the 1st landlord taking Kshs.60,000/- and the 2nd landlord Kshs.30,000/- as per annexure ‘SGN1’.

6. Initially, the tenant would pay the whole amount of monthly rent to the 1st Respondent who would in turn remit the 2nd Respondent’s share thereof. However, there were complaints that the 2nd Respondent was not receiving her share as a result of which the landlord decided to be paying the two landlords directly in line with their respective entitlements.

7. As he did not have the 2nd Respondent’s account details he withheld her entitlement awaiting communication on the mode of remittance. He therefore denies owing rent to the 1st Respondent. As such, the 1st Respondent’s instructions to the 3rd Respondent is said to be unjustified.

8. The tenant disputes owing Kshs.720,000/- in rent arrears and claims the same to be exaggerated. The tenant further states that there was an agreement to retain Kshs.15,000/- payable to the 1st Respondent from one month’s rent to cater for roof repairs.

9. The tenant deposes that according to the lease agreement dated 7th February 20217 at Clause 5, his lease was extended for 3 years until 30th March 2022 as compensation for building a storey structure on the premises on the understanding that he would leave the structures in situ upon expiry of the lease at no cost to the lessor who is now deceased.

10. He deposes that he has been remitting rent to the landlords despite the 3 years granted by Hannah Mumbi Karega (deceased) as compensation for developments and he was minded to claim the 3 years “compensatory period or valuation of the structures”against the landlords.

11. It is the tenant’s case that the landlords ought to have made an application to levy distress for rent before this Tribunal prior to the impugned proclamation.

12. The tenant further deposes that the landlords are illegally asking for increased rent of Kshs.725,000/- and Kshs.760,000/- respectively which was illegal.

13. The application is opposed through a replying affidavit of the 1st Respondent sworn on 25th May 2021 in which it is deposed that the same is a non starter, frivolous, vexatious and an abuse of court process.

14. The 1st Respondent deposes that the Applicant and her late mother entered into a lease agreement on 1st February 2016 for the suit premises situated on land parcel no. Nakuru Municipality Block 22/660 (Muguga) for a period of one (1) year. As the Applicant had improved the premises by constructing a new storey steel structure, it was agreed to extend the lease for another three years as compensation for the said improvements.

15. A further lease agreement was entered into on 7th February 2017 for a period of three (3) years. Rent was payable to the late Hannah Mumbi Karega. After she passed away another agreement was entered into by the late landlord’s family member’s on 24th July 2017 for preservation of the deceased’s estate pending the filing of succession cause. The same is marked annexture ‘NMII’.

16. Under the said agreement, the 2nd Respondent was to receive Kshs.30,000/- out of the rent payable while the 1st Respondent was to receive the balance. This position was communicated to the Applicant. He started to comply.

17. The rent payable under Clause 6(c ) of the lease agreement dated 7th February 2017 is Kshs.120,000/- per month with effect from 1st March 2019 which was not reviewed by the subsequent agreement of 24th July 2017.

18. The 1st Respondent denies the Applicant’s assertion that she agreed to offset Kshs.15,000/- from one month’s rent for roof repairs.

19. It is deposed that since the year 2020, the Applicant has been erratic in rent payment and has been making varying rent payments in contravention of the lease agreement. Several reminders and demands have been made for full rent payment in vain.

20. The applicant is accused of using one of the rooms as storage facility despite several demands to vacate the said space.

21. In March 2020, the tenant is said to have agreed to pay Kshs.10,000/- for the said space but failed to do so thereafter and continued to occupy it nevertheless.

22. The 1st Respondent demanded payment of arrears against the tenant and when the same was not complied with, she instructed her lawyers to commission an auctioneer to levy distress. That is how the 3rd Respondent came into the picture.

23. The Applicant’s advocates wrote a letter dated 15th April 2021 after the 3rd Respondent moved to recover rent and thereafter rushed to this Tribunal to forestall recovery.

24. According to the 1st Respondent, the Applicant has only paid her a total of Kshs.907,000/- between January 2020 and April 2021 out of an expected rental income of Kshs.1,350,000/- for the 16 months leaving a balance of Kshs.533,000/- as at April 2021.

25. A further sum of Kshs.140,000/- at Kshs.10,000/- per month is demanded from the tenant being 14 months rent for the extra space he occupies.

26. As such the Applicant is accused of moving the Tribunal with unclean hands and is undeserving of the orders sought since distress for rent is a statutory remedy available to a landlord.

27. The application was ordered to proceed by way of written submissions and both parties complied.

28. I am required to determine the following issues:-

a. Whether the tenant is entitled to the reliefs sought herein.

b. Who is liable to pay costs?

29. The relationship between the Applicant and the landlords is based on written agreements. It is trite law that the duty of a court of Law is to enforce contracts made by parties and not make new contracts for them. In this regard, I will cite the decision of Sir Charles Newbold P (as he then was) in Jiwaji – vs- Jiwaji (1968) EA 547 at page 554 where at letter B it was held as follows:-

“But where there is no ambiguity in an agreement, it must be construed according to the clear words actually used by the parties, and it would be quite wrong to adopt a different construction or to imply a term to the contrary effect”.

30. Citing Lord Halsbury L.C in Smith – vs- Cooke (1891) A.C at p. 299, the court stated at page 554 letter C-D a follows:-

“1 must say I for one have always protested against endeavoring to construe an instrument contrary to what the words of the instrument itself convey, by some sort of preconceived idea of what the parties would or might have intended when they began to frame their instrument.

“………….I think I am not entitled to put into the instrument something which I do not find there, in order to satisfy an intention which is only reasonable if I presume what their intentions were. I must find out their intentions by the instrument they have executed, and if I cannot find a suggested intention by the terms of the instrument which they have executed, I must assume that their intention were only such as their deed discloses”.

31. The Applicant despite having paid rent to the 1st and 2nd Respondents submits that they are intermeddlers of the estate of the original landlord. This issue is not pleaded anywhere in the filed documents and do not arise for determination. In any event, there is no doubt that they are beneficiaries of the estate of the deceased landlord and fit in the description of landlord as defined in Section 2 of Cap. 301 which states:-

“Landlord in relation to a tenancy means the person for the time being entitled as between himself and the tenant to the rents and profits of the premises payable under the terms of the tenancy”.

32. In regard to the extra space against which a rent of Kshs.10,000/- is demanded, I note that the same is not captured in the original nor subsequent agreement between the parties and in line with the Jiwaji – vs- Jiwaji Case (supra) the same having not been in contemplation of parties cannot form the basis for demanding the sum of Kshs.140,000/- or monthly rental income ascribed thereto.

33. As regards whether the landlords were entitled to levy distress for rent without leave of the Tribunal, it is my view that the same is not mandatory. This was aptly stated in the case cited by counsel for the landlords being John Nthumbi Kamwithi – vs- Asha Akumu Juma (2018) eKLR where it was held as follows:-

“I find that the appellant had no obligation to seek permission from the tribunal to levy distress. The fact that the tenancy is controlled does not mean that the landlord applies to the Tribunal to levy distress. Distress is a right the landlord is entitled to for recovery of rent. If the tenant chooses he/she could file a reference to the tribunal for orders in objection of the distress……..”.

34. All the decisions cited by counsel for tenant is support of his contention on illegal distress are clearly distinguishable and inapplicable to the circumstances of the instant case.

35. The tenant submits that the landlords have not offered evidence to controvert his assertion that he is up to date with his rental payment obligations. According to the tenant, the landlords sought to distrain for Kshs.725,000/- but in the replying affidavit claim that the amount due is Kshs.533,000/- plus a further sum of Kshs.140,000 which brings a total of Kshs.673,000/-. This is cited as evidence that the 1st landlord was not entitled to distress for rent and as such the tenant was entitled to an order of injunction.

36. I have looked at paragraph 8 of the supporting affidavit of the tenant which states as follows:-

“That following complaints of non-receipt of her share of rent by the 2nd landlord from the 1st landlord, I started remitting Kshs.60,000/- to the 1st landlord with the balance of Kshs.30,000/- owed to the 2nd landlord being retained awaiting communication as to the mode of remittance. To that extent, I am not indebted to the 1st landlord in any way. The demand letter and 1st landlord’s instructions to the 3rd Respondent containing demand for non-accrued and unjustified sums are hereto annexed and marked ‘SGN2 a & b’.

37. This particular paragraph clearly shows that the tenant had not been paying full rent to the landlords in terms of the agreement entered into on 7th February 2017.

38. The landlords’ counsel submits that distress for rent is a lawful process and is exercisable by a landlord when the tenant is in arrears whether the tenant is protected or not. The same is provided for under section 3 of the Distress for Rent Act which stipulates as follows:-

“(3)(1) Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrear and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the common law of England in a similar case”.

39. I agree that all that a landlord need to demonstrate in an objection to distress for rent as in this case is that some rent is owing by the tenant.

40. Although counsel for the landlord submits that the tenant herein is not protected, I find that given that the tenancy is for less than 5 years though in writing fits in the description of a controlled tenancy as contained in Section 2(1)(b) (i) of Cap. 301, Laws of Kenya. This however does not affect the validity of distress for rent without leave or permission of the Tribunal as long as there is demonstration that any rent” is owing.

41. I do not agree with the tenant when he submits that as long as the amount claimed was payable to the 2nd Respondent, the 1st Respondent could not instruct the 3rd Respondent to levy distress. The tenancy being common and/or joint, any of the two landlords could instruct the auctioneer.

42. As regards proof that rent was owing, I find that the tenant had the burden to prove that he had paid rent to the date of filing the application in line with sections 107 (1) of the Evidence Act which provides:-

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

43. Section 108 of the same Act provides:-

“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”.

44. Finally, Section 109 provides:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”.

45. In this case, the tenant has not provided proof that he has paid rent up to date as alleged. In absence of evidence to that effect, he cannot be protected from recovery measures instituted by the landlords. He has provided no account.

46. According to the landlords, the Applicant was in arrears of rent in the sum of Kshs.533,000/- as at 30th April 2021 which continues to accrue to date. The landlords are entitled to recover the same.

47. The tenant has not provided any evidence that there was a dispute between the two landlords on non-remittance of the 2nd landlord’s share and this angle appear to have been deliberately introduced to muddy the waters and found a cause of action by the tenant.

48. In the premises, I am not convinced that the tenant has brought himself within the principles of granting an injunction espoused in the case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358.

49. It has been submitted that the tenant should not be allowed to benefit from his own wrong having breached the terms of the lease agreement by failing to remit rent to the landlords. It is further submitted that he is precluded from impending the 1st Respondent’s efforts to recover the rent due and owing in a lawful manner.

50. I entirely agree with the foregoing submission and rely on the decision in the case of Samuel Kipkori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR at paragraph 9 & 12 where it was held 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 investments..”

“12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who come 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”.

51. The tenant filed a reference whose complaint is worded as follows:-

“That the landlord has issued a proclamation of distrain of tenant’s property through Nasioki Auctioneers.

2. That the landlord has illegally increased rent contrary to provisions of Cap. 301.

3. That the honourable be pleased to restrain the landlord from issuing a proclamation of tenant’s property and increasing rent illegally”.

52. The complaints aforesaid are similar to those constrained in the instant application. As this tribunal under section 9 (1) of Cap. 301, Laws of Kenya is only required to conduct an ‘inquiry’ as may be required by or under the Act or as it deems necessary upon the reference, no useful purpose will be served to do a separate decision on the complaint and this ruling shall apply to the application and reference.

53. I have already held that the rent payable in respect of the suit premises is clearly provided for in the agreement dated 7th February 2017 at Clause 6 thereof. The said clause being unambiguous need no secondary evidence to interpret and I entertain no doubts that it is binding upon the parties and their successors in title.

54. I have not seen any evidence of increase of rent save in respect to the alleged additional space which the 1st landlord/Respondent intend to charge at Kshs.10,000/-. Having found that the same is not payable, I do not think it would be necessary to escalate the matter to hearing moreso given that the tenancy agreement does not provide for the same.

55. Flowing from the above analysis, the following final orders commend to me:-

(i) The application dated 19th April 2021 is dismissed.

(ii) The ex-parte orders given on 21/4/2021 are hereby discharged and/or vacated.

(iii) The tenants reference is allowed to the extent that the landlord’s are disentitled to charge a sum of Kshs.10,000/- per month in respect of the purported extra space used by the tenant.

(iv) The Landlord’s are entitled to use lawful means to recover rent based on clause 6 of the tenancy agreement dated 7th February 2017.

(v) Each party shall bear own costs of the suit.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF DECEMBER, 2021

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Mrs. Mukira for 1st Defendant/Landlord

No appearance for the Tenant.