[2021] KEBPRT 338 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 2 OF 2021 ( ELDORET)

SILAS TSUMA AMKAYI................................................................TENANT

VERSUS

GEOFREY KIMANI NDUNGU ................................................LANDLORD

DORCAS NJERI.........................................................................LANDLADY

RULING

1. This ruling determines two applications filed separately by the parties herein; the tenant’s application dated 25th January, 2021 and the Landlord’s application dated 8th June, 2021. The two applications were both filed by way of certificates of urgency. The tenant’s application sought for the following orders:

i. Spent

ii. The Respondents either by themselves, their servants, employees and/ or agents be restrained from interfering with the Tenant’s business, closing the premises, frustrating and/or inhibiting quiet possession or evicting the tenant from the premises situated on land parcel known as plot number 180 at Moi’s Bridge Centre pending the hearing and determination of this application and thereafter pending the hearing and determination of the complaint.

iii. The officer commanding Moi’s Bridge police station or any other police station that is nearer to the demised premises do assist in compliance of the orders and ensure peace prevails.

iv. The tenant be ordered to deposit half of the monthly rent into the Tribunal account at the Landlady’s/ 2nd Respondent’s costs

v. Costs of this application be provided for.

2. The application stems from a Landlord’s notice of termination that was issued jointly by Geoffrey Kimani and Dorcas Njeri on the 14th January, 2021 and was to take effect from 1st April, 2021. The grounds for terminating the controlled tenancy have been set out as rent arrears which then stood at Kshs. 9,000/- and the intentions to renovate the corridor for own use.

3. The Landlord upon be served with the application, entered appearance and filed a response to the application through the detailed replying affidavit dated 31st March, 2021. It is imperative to note that the said replying affidavit painted out an explicit picture on the ownership of the demised premises. The tenant’s assertation that one Geoffrey Kimani did not have the locus to issue the notice of termination has been sufficiently clarified.

4. The tenant filed a further affidavit as a response to the Replying Affidavit. The parties were directed to file written submissions. Both parties complied by filing their respective submissions in support of their distinct positions.

5. The landlord filed an application by way of certificate of urgency on 8th June, 2021 seeking the vacation of the interim orders issued on 1st February, 2021 and that the Tribunal do issue orders terminating the tenancy. The application is said to have been precipitated by a statutory notice which required the Landlord to construct a septic tank within a stipulated period.

6. The tenant did not respond to this application. The same cannot however be said to be unopposed. This Tribunal draws its jurisdiction and powers by dint of the provisions of Section 12 of Cap 301, the various provisions of the Civil Procedure Act and the attendant rules and the Constitution of Kenya. The tribunal has powers to review its own decisions to ensure that justice is served upon the parties. The Tribunal can only review its orders where there is substantial change of circumstances to warrant the same.

7. The Landlord’s application in my view was brought prematurely before the Tribunal as the Landlord had an opportunity to ventilate their concerns through the application filed earlier. Alternatively, they should have moved the court accordingly for directions instead of clogging the present reference with numerous applications.

8. This position is fortified by decision in Julius Mogaka Gekonde t/a E-Smart Technical College v Ouru Power Limited & another [2016] eKLRwhereby the court when faced with a similar situation in which the defendant filed two applications seeking to discharge the interim orders issued stated as thus:

‘Having dealt with the 1st application, it automatically follows that the defendants’ 2nd and 4th applications are resolved/settled as they basically sought the setting aside, stay or variation of the orders made on 30th October 2015. The 2nd and 4th applications were to my mind, prematurely filed by the Defendants as their contents therefore ought to have formed the basis or part of the Defendant’s response to the 1st application.’

9. The submissions filed by the parties have addressed the issues of grant of temporary orders of injunction as sought by the tenant. The parties buttressed their respective positions on the triple requirements which were set for the grant of temporary orders of inunction in the celebrated case of Giella V Cassman Brown & Company Limited, (1973) 358 EA as follows:

(i) The applicant must establish a prima facie case with a probability of success.

(ii) The applicant must then demonstrate that he or she stands to suffer irreparable loss or damage which cannot be adequately compensated by an award of damages.

(iii) Where there is doubt on the above, that the balance of convenience tilts in favour of the applicant

9. The Landlord has however raised an objection that a reading of section 12 of the Act proves that this Tribunal is not vested with the powers to grant orders of temporary injunction. In order to support this position, reliance has been placed on Republic vs Business Premises Rent Tribunal & Another & Ex parte Davies Motor Corporation Limited (2013) eKLR.

10. It is important to first set out that the Tribunal’s jurisdiction emanates from section 12 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act under which subrule (4) provides:

(4) In addition to any other powers specifically conferred on it by or under this Act, aTribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit…(own emphasis)

11. The issue of the jurisdiction of the Tribunal to issue temporary orders of injunction has been subject of litigation and there is a view that the Tribunal can nevertheless issue orders to preserve a tenancy which is the subject of proceedings before it. The Court, in Mombasa Misc. Application (J.R) No. 26 of 2010 The Chairman Business Premises Rent Tribunal at Mombasa Ex parte Baobab Beach Resort (Mombasa)Ltd stated as follows:

“An order for status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each. While the latter is a substantive equitable remedy granted upon establishment of right, or, at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its effect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint. In its negative form, however, an injunction may have the same effect as an order for status quo. I find that the Tribunal has among the orders that it may make on a complaint under Section 12(4) of the Landlord and Tenant Act an order for status quo to hold the situation in the controlled tenancy until the determination of the proceedings filed thereon.”

12. Further the court in Rent Restriction Tribunal v Raval Ex-Parte Mayfair Bakeries Limited, [1985] Klr 167stated that although the Act does not specifically mention the word “injunction” but, it does speak of an “order”. The Court went ahead to state that:

“In Volume 21 of Halsbury’s Laws of England, (3rd edition) at page 343, an injunction is defined as-

“a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing. In the former case it is called a restrictive injunction, and in the latter, a mandatory injunction.”

Again in Sutton & Shannon on Contracts, 6th edition, it is stated at page 396: -

“An injunction is an order of the court granted for the purpose of restraining the doing, continuance or repetition by the person enjoined, his servants or agents, of some wrongful act which constitutes an infringement of a legal or equitable right …”

13. In view of the above decisions, I am persuaded that this Tribunal has jurisdiction to grant the temporary orders sought. I am also alive to the fact that pursuant to Article 169 of (1)(a) of the Constitution of Kenya 2010, tribunals are subordinate courts and by dint of their status as subordinate courts, they have jurisdiction under Sections 3A and 40 of the Civil Procedure Act to issue injunctive orders.

14. The grounds on which a landlord can seek to terminate controlled tenancy are elucidated under section 7 of the Act. The Landlord has in their notice to terminate the tenancy set out two grounds as earlier mentioned.

15. The Landlord alleged that the tenant had defaulted in paying rent amounting to Kshs.9000/-. The tenant refuted this and attached evidence of payment of rent. The Landlord in the responses and submissions have been evasive on this issue despite the duty imposed on them by the provisions of section 3(3) of the Act. I am therefore not convinced that the tenant has been a persistent rent defaulter.

16. The Landlord has persuaded the Tribunal that there are urgent constructions and or modifications to be carried out on the demised premises. They have attached a number of documents in support of the assertations. The documentation speaks for themselves as they have been issued by the relevant government offices. The Act allows the landlord the power to terminate a controlled tenancy so as to carry out repairs.

17. The tenant has established a prima facie case having established that he occupies the demised premises and had been paying rent when it was due. The landlord also did not address the issue of the purported rent increment. Probably, they realized that they goofed as they did not follow the due process as prescribed under the Act.

18. The tenant has persuaded the Tribunal that they stand to suffer irreparable damage as he depends on the business carried out on the premises for his sustenance. Further, he has attached evidence of the repairs he carried out to modify the premises to suit his business. He has therefore satisfied the conditions set for the grant of temporary orders of injunction.

19. Therefore, having considered the circumstances of the case and the Tenant/Applicant’s application dated 25th January, 2021, I hereby find that the application is allowed and I hereby make orders that a temporary injunction issue restraining the Respondents from evicting the Applicant and to maintain the status quo pending the hearing and determination of the complaint. Owing to the prevailing circumstances surrounding this matter, the parties are hereby directed to take the necessary steps to prosecute this reference in an expeditious manner.

20. The application dated 8thJune, 2021 is hereby dismissed as it was filed prematurely before the Tribunal.

21. Each party shall bear their own costs for the two applications.

It is so ordered.

DATED, SIGNED AND DELIVERED 9TH DAY OF SEPTEMBER, 2021.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the absence of the parties.