[2021] KEBPRT 1 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E248 OF 2021 (NAIROBI)

SELLA ANDERA AMBIYO...................TENANT/APPLICANT

VERSUS

TOUGH HIDE LIMITED.......LANDLORD/1ST RESPONDENT

GAMAR INVESTMENTS...............AGENT/2ND RESPONDENT

JUDGEMENT

1. By a motion dated 25th June 2021, the Tenant moved this Tribunal seeking various reliefs. Prayers 1, 3 and 4 were granted ex-parte and as such only prayer 2 falls for determination.

2. The application is supported by the affidavit of the Tenant sworn on 26th June 2021 and the grounds on the face thereof.

3. It is the Tenant’s case that she is a Tenant in the Landlord’s premises known as Simla House, Tom Mboya Street, Nairobi paying a monthly rent of Kshs 14,000/-. She has been a good Tenant for the last 40 years and has never defaulted in paying rent to the Landlord.

4. Owing to Covid – 19 pandemic, her source of income was greatly affected and she defaulted in paying rent for 7 months and as such was in arrears of Kshs 100,000/-.

5. The Tenant seeks for restraining orders against the Landlord from harassing, intimidating, threatening and in any other way interfering with her quiet possession of the suit premises.

6. The 2nd Respondent though its manager one Newton Gakuru opposes the application vide a replying affidavit sworn on 18th August 2021 stating that the company has been managing the property on behalf of the 1st Respondent.

7. The reserved monthly rent for the suit premises is Kshs 14,800/- (exclusive of VAT). According to the 2nd Respondent, the Tenant has been tardy and litigious having approached the Tribunal for assessment of rent in the year 2017 as per annexture “NG – 2”.

8. As at December 2019, the Tenant was in arrears of Kshs 82,137. 52/- which she made a proposal for settlement by monthly instalments of Kshs 20,000/- inclusive of monthly rent.

9. As at the date of swearing the replying affidavit, the Tenant was in arrears of Kshs 247,704/-. A reduction of 50% in rent between May 2020and August 2020 was given to all Tenant’s by the Landlord on account of effects of Covid – 19 pandemic.

10. It is the 2nd Respondent’s contention that it is buffering that the Tenant moved this tribunal to prevent rent recovery measures which had not commenced.

11. As such, the application and reference are brought in bad faith with an intention of using the court order to shield herself from meeting her tenancy obligations while she continued to occupy the premises and to enjoy all anxillary services.

12. According to the Respondents, the Tenant was in breach of the most fundamental term of the tenancy agreement and is not entitled to an injunction.

13. It is the Respondent’s case that the Tenant’s suit and reference do not disclose any reasonable cause of action and ought to be dismissed with costs.

14. In a further affidavit sworn on 3rd September 2021, the Tenant annexes some rent payment receipts as evidence that she has been meeting her obligations in that regard.

15. She deposes that she has been unwell on account of a road accident in which she lost her son. She confirms that her monthly rent is Kshs 14,800/-.

16. She states that she needs protection from being evicted and contends that she has spent a lot of money in renovating the shop since taking possession two decades ago.

17. She complains that the 2nd Respondent has refused or failed to issue her with rent payment receipts.

18. The parties were directed to file written submissions but only the Landlord complied. I am now required to determine the following issues;

a. Whether the Tenant is entitled to the reliefs sought.

b. Who is liable to pay costs?

19. I note that the Tenant’s reference dated 26th June 2021 raises the same issues as the application. This ruling shall therefore apply to the said reference.

20. The principles upon which an injunction is granted were settled in the locus classicus case of Giella Vs Cassman Brown & Co Ltd [1973] EA 358as follows;

a. An Applicant must show a prima facie case with a probability of success.

b. An injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury.

c. When the court is in doubt, it will decide the application on the balance of convenience.

21. A prima facie case was defined by the Court of Appeal in the case of Mrao Ltd Vs First American Bank of Kenya Ltd and 2 others [2003] eKLR at page 8/10as follows;

“So what is a prima facie case, I would say in civil cases, it is 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.”

22. In the case of Nguruman Limited Vs Jan Bonde Nielsen and 2 others [2014] eKLR the Court of Appeal while discussing the three principles set out in Giella Vs Cassman Brown & Co Ltd (supra) at page 9/15 stated as follows;

“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially.”

23. Applying the said principles to the instant case, it is to be noted that the Tenant has not presented any evidence of harassment, intimidation, threats or any interference by the Landlord or 2nd Respondent with her quiet enjoyment and possession of the suit premises.

24. The Tenant has not demonstrated that any of her rights has been infringed by the Respondents to warrant an order of injunction being granted in her favour. No irreparable injury has been cited by the Tenant neither is there any evidence presented before me to show that the balance of convenience is in favour of granting an injunction.

25. In their part, the Respondents have demonstrated that the Tenant is in huge rent arrears for which she has not presented any acceptable payment proposal to warrant protection by this Tribunal.

26. A court of equity cannot be called upon to protect a Tenant who has failed to meet her cardinal obligation of paying rent. In this regard, I am fortified by the decision in the case of Kyangavo – Vs Kenya Commercial Bank Ltd and another [2004] I KLR 126 where it was held as follows;

“Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. He who comes to equity must fulfill all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that – consequently, he has not done equity.”

27. I have looked at the rent payment receipts attached to the Tenant’s further affidavit and note that she has paid Kshs. 25,000/- in the year 2021 as monthly rent out of the expected Kshs 177,600/-. The explanation given is that she was involved in a road accident in which she lost her son. She has continued to occupy the business premises and is doing business therein without paying rent. This is a state of affairs no court of equity can countenance.

28. In the premises, the Tenant has totally failed to bring herself within the principles for granting an injunction and her application and reference must fail.

29. The upshot of my foregoing analysis is that;

a. The application dated 25th June 2021 and the reference dated 26th June 2021 is hereby dismissed with costs.

b. The ex-parte orders given on 29th July 2021 are hereby discharged and vacated.

c. The Respondent’s costs are assessed at Kshs 30,000/- against the Tenant.

d. The Landlord shall be at liberty to use lawful means to enforce rent payment by the Tenant without recourse to this Tribunal.

It is so ordered.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

JUDGEMENT DATED, SIGNED AND DELIVERED THIS 11TH DAY OF NOVEMBER 2021 VIRTUALLY IN THE ABSENCE OF THE PARTIES.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL