[2022] KEBPRT 717 (KLR)

Sankale v Karasha (Tribunal Case E415 of 2022) [2022] KEBPRT 717 (KLR) (16 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 717 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E415 of 2022

Gakuhi Chege, Vice Chair

September 16, 2022

Between

Alfred Karasha Sankale

Applicant

and

Simon Joseph Karasha

Respondent

Ruling

1. Before me is a motion dated 16th May 2022 by which the tenant moved this Tribunal seeking restraining orders against the Landlord/Respondent from evicting him from the suit premises known as Laiser Farmers Bar and Restaurant erected on LR. NO. Ngong/Ngong Town Block 2/88 pending hearing and determination of the main Reference.

2. He further seeks for a temporary injunction against his eviction from the suit premises pending and determination of Nairobi Court of appeal case no. E710 of 2021.

3. The application is supported by the applicant’s affidavit sworn on 16th May 2022 and the grounds on the face of the application.

4. The applicant was served with a notice of termination of tenancy dated 21st April 2022 which was expressed to take effect on 1st July 2022 on the grounds that the landlord intends to carry out extensive renovations to the suit premises comprised in the tenancy or a substantial part thereof which cannot reasonably be done without obtaining possession thereof.

5. The tenant filed a reference dated 16th May 2022 against the said termination. He has annexed to the supporting affidavit copies of the notice to terminate tenancy and memorandum of appeal against Kajiado ELC Case no. 39 of 2019 to demonstrate that there was an ownership dispute between him and the Respondent which was pending in the court of appeal in civil appeal no. E710 of 2021.

6. The applicant deposes that he strongly believes that he is the rightful owner of the suit premises and has moved the court of appeal to declare him so after being dissatisfied with the judgment in Kajiado ELC case no. 39 of 2019 delivered on 16th September 2021.

7. He therefore seeks that this Tribunal orders the Landlord herein to wait for the court of appeal decision before issuing any notice to vacate the suit premises.

8. According to the applicant, it was in the interest of natural justice, equity and conscience if the application and prayers sought are granted.

9. On 25th May 2022, this Tribunal directed the applicant to file the judgment in Kajiado ELC Appeal case no. 39 of 2019 in order that the Tribunal makes an informed decision on the application. The matter was therefore listed for hearing interpartes on 20th June 2022.

10. In a further affidavit sworn on 24th May 2022, the applicant reiterates the contents of the supporting affidavit sworn on 16th May 2022 adding that he has not been paying rent as he believes that he is the rightful owner of the suit premises which was subject matter of the court of appeal case.

11. The applicant deposes that he filed this case as the notice to vacate served on him was from this Tribunal and prays that the Respondent should wait for the court of appeal decision before issuing any notice to vacate from the suit premises.

12. The application is opposed through the Respondent’s replying affidavit sworn on 17th June 2022 wherein it is deposed that he is the registered proprietor of the suit premises known as Laiser Farmer’s Bar and Restaurant. The applicant was granted the right to occupy the premises after he lost his job with Uchumi Supermarket Limited in early 1990’s. The applicant paid rent for three (3) months upon assuming occupation after which he declined to pay rent to date.

13. The applicant moved to court vide Milimani ELC No. 1064 of 2013 which latter became Kajiado ELC case no. 39 of 2019 (OS) claiming adverse possession against the Respondent/Landlord.

14. The said case was dismissed on 16th September 2021 by the ELC court in terms of annexure ‘SJK3’. The applicant filed an appeal to the court of appeal being Civil Appeal no. E710 of 2021 at Nairobi but there was no order issued to bar the Respondent from terminating the tenancy. No stay order against termination has been given by the court of appeal.

15. As such, the Respondent contends that this Tribunal ought to proceed to determine the dispute relating to the notice to terminate tenancy in so far as its validity is concerned. However, the Respondent deposes that this Tribunal has no jurisdiction to stay or suspend the instant proceedings.

16. The matter was directed to be disposed of by way of written submissions and both parties have complied.

17. The issues for determination are:-a.Whether the applicant is entitled to the reliefs sought in the application dated 16th May 2022. b.Who is liable to pay costs?

18. The principles for issuance of a temporary injunction were settled in the Locus Classicus case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358 to wit:-i.An applicant must show a prima facie case with a probability of success.ii.An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.iii.When the court in doubt, it will decide the application on the balance of convenience.

19. A prima facie case was defined in the case of Mrao Ltd – vs- First American Bank of Kenya Ltd & 2 Others (2003) eKLR to mean a case in which on the material presented to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.

20. The Respondent is the proprietor of the suit premises while the applicant is his son who went into possession thereof with permission of the former. A dispute arose over the ownership of the suit premises when the applicant went to the Environment and Land Court claiming in adverse possession. He lost the case and subsequently filed an appeal. The matter is currently pending in the court of appeal but there is no order for stay of proceedings issued by the said court against the current case.

21. The applicant has not demonstrated that he has a good case against the Respondent which might succeed when the present reference is heard and determined. He has not shown to this court what irreparable injury he is bound to suffer if the orders sought are not granted neither has he shown that there is any threat to evict him in the pendency of these proceedings.

22. I do not agree with the submissions of counsel for the applicant that the applicant is entitled to the reliefs sought in his application on the basis of the principles set out in Giella – vs- Cassman Brown & Co. Ltd.

23. Existence of a dispute before the court of appeal is not in my considered view a good basis for me to find that the applicant has a prima facie case with a probability of success. There is no evidence that there is an impending eviction against the applicant neither is there evidence that such eviction if at all would occasion irreparable injury which cannot be compensated by an award of damages.

24. As regards costs, the same are in the Tribunal’s jurisdiction but always follow the event. I have no reasons to deny the Respondent costs of the application.

25. In conclusion, the orders that commend to me are:-i.The application dated 16th May 2022 by the tenant is dismissed with costs.ii.The costs of the application are awarded to the Respondent.iii.The parties shall comply with order 11 of the Civil Procedure Rules within Thirty (30) days hereof to enable hearing of the reference on merits.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 16TH DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Taliti for the Applicant/TenantWachira for the Landlord/RespondentFurther: Mention on 25th October 2022. Reference to be served upon the landlord by close of business today to enable compliance by both parties with order 11 Civil Procedure Rule.