[2025] KEBPRT 196 (KLR)

Sir Me Pix Photography v Libiso (Tribunal Case E031 of 2024) [2025] KEBPRT 196 (KLR) (15 January 2025) (Ruling)

Neutral citation: [2025] KEBPRT 196 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E031 of 2024

P Kitur, Member

January 15, 2025

Between

Sir Me Pix Photography

Applicant

and

Kent Libiso

Respondent

Ruling

A. Parties 1. The Applicant known as Sir Me Pix Photography is a business registered in Kenya whose proprietor is known as Samwel Odhiambo Okoth and conducts its business within Kisumu Minicipality/Block 12/195 as the tenant of the Landlord.

2. The firm of D.O.E Anyul and Company Advocates represents the Applicant/Tenant.

3. The Respondent is the Landlord of the property located at Kisumu Minicipality/Block 12/195 (the suit premises).

4. The firm of Mogaka Omwenga & Mabeya Advocates represents the Respondent/Landlord.

B. The Dispute Background 5. It is apparent from the evidence on record that the parties herein entered into a tenancy agreement vide a lease agreement executed by both parties on 25th June 2023. According to the lease agreement, the tenancy was to be for a period of five years commencing on 1st July 2023. The Landlord allowed the Tenant occupation of the suit premises at the rate of Kshs. 85,000/- as monthly rent.

6. The tenancy went on uninterrupted until sometime in the month of August 2024 when the Landlord issued upon the Tenant a notice to terminate tenancy citing irregular rent payment by the tenant and outstanding rent arrears to the tune of Kshs. 280,000/- as at August 2024.

7. Aggrieved by the notice, the Applicant referred the dispute to this tribunal under the provisions of Section 12(4) of the Act, detailing the specifics of the complaint against the landlord. The Applicant prayed for this tribunal to intervene and prevent the landlord from locking out the Applicant and permitting new tenants into the suit premises.

8. The Applicant/Tenant filed an application dated 25th July 2024, under a certificate of urgency, accompanied by a supporting affidavit sworn by Samwel Odhiambo Okoth on the same date. In the application, the Tenant, through their Counsel, sought an order of injunction against the Landlord or its agents to restrain them from locking out the Tenant or interfering with the Tenant's tenancy pending the hearing and determination of the Application and the complaint suit.

9. The Respondent filed a Replying Affidavit sworn by Kent Libiso on 26th August 2024, opposing the Application. The Respondent detailed the particulars of the Applicant/Tenant's arrears that prompted the termination of the tenancy. The Respondent also argued that it had entered into a tenancy agreement with one Dr. Khizra, not the Applicant herein, and therefore no tenancy relationship exists between the parties in this case. However, the Respondent provided no evidence to support this claim. Curiously, the Landlord goes ahead to acknowledge that the Applicant has been previously depositing rent into a joint account owned by the Respondent and his sister, and by the mere fact that it issued a tenancy notice to the Applicant herein.

10. The Applicant filed a supplementary affidavit dated 10th September 2024 in response to the Respondent’s replying affidavit.

11. The parties agreed to dispose of the Application by way of written submissions, to which both parties complied.

12. In their submissions, the tenant asserts that it has met the criteria for being granted a temporary injunction due to having demonstrated sufficient cause. The tenant claims that all rent payments were made in a timely manner up until May 2024, when a court order changed the designated account for payments. The applicant states that it has not received adequate communication regarding the correct account for rent payments despite numerous inquiries. As a result, the Tenant states, the alleged accrual of rent arrears is not attributable to the tenant's fault.

13. The Landlords case is that the Applicant is not entitled to the injunctive orders sought in its Application because the Applicant/Tenant is indeed in arrears and does not contest this fact. The Applicant has failed to provide evidence demonstrating that rent payments are current. That the instant suit pertains to a monetary claim, and the Applicant has not disclosed any irreparable harm to which he may suffer. Lastly, the Applicant has not presented a case justifying the issuance of the injunctive orders sought in its Application.

14. In full consideration of the Application dated 25th July 2024 and the respective documents filed by each party in support of their case, this tribunal is of the opinion that the following issues arise for determination.

C. List Of Issues For Determinationa.Whether the Applicant is entitled to the Orders sought.

D. Analysis And Findings 15. Firstly, this court notes that this matter is brought before the Tribunal under Section 12(4) rather than of Section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya (the Act). The Tribunal will however exercise its discretion to hear the matter, even if the application was brought under the wrong section, for it believes that the issue is urgent and that it would be in the interest of justice to address the matter promptly. Furthermore, a strict application of the procedural rules might result in unnecessary delays or hardship for the parties involved.

16. In this case, the Applicant asserts that they are not in arrears and that the failure to make payments was due to the Respondent’s failure to provide an account for the rent payments. This assertion, if proven, raises a legitimate legal issue, as the Respondent has an obligation to provide the means by which rent can be paid. The failure to do so could amount to a breach of the landlord's duty to facilitate the tenant’s performance under the lease agreement.

17. The Applicant’s claim that they could not make the payments because of the Respondent’s failure to provide payment details presents an arguable case. Given that the Applicant has consistently expressed a willingness to pay, this issue must be addressed, and the Tribunal finds that there is a legitimate issue.

18. The Applicant asserts that they have been willing and able to pay the rent but were prevented from doing so due to the Respondent’s failure to provide the necessary account information. If the Applicant is evicted, the harm suffered will be significant, particularly if the failure to pay rent was due to a technical issue rather than the Applicant’s fault or financial incapacity.

19. In this context, an eviction could result in the Applicant losing their business or being forced to relocate, which would not be easily compensated by monetary damages. Furthermore, the Applicant would not be in this position if the Respondent had provided the necessary payment details in a timely manner. Therefore, the Tribunal concludes that damages or other remedies would not be adequate, and an injunction is necessary to allow the Applicant to resolve the situation.

20. In light of the facts and the legal principles outlined above, the Tribunal finds that the Applicant is entitled to an injunction to prevent eviction. The Applicant has established a prima facie case by demonstrating that the failure to make payments was due to the Respondent’s failure to provide an account, and not due to any fault of the Applicant.

21. I therefore proceed to order as follows:-E. Ordersa.The Respondent and/ or their agents are hereby restrained from evicting the Applicant from the suit premises located at Kisumu Minicipality Block 12/195. b.The Respondent is ordered to provide the necessary payment account details to the Tenant within 14 days.c.The Tenant is ordered to make payment of the rent owed outstanding at Kshs. 280,000/= as at August 2024 no later than 14 days from the date of receipt of the payment account details from the Landlord failing which the Landlord shall be at liberty to distress for the rent without any further reference to this Tribunal.d.Penalty for late payment of rent shall not apply for the period between 15th July 2024 and the date of delivery of this Ruling, being 15th January 2025. e.The Landlord is at liberty to issue any notice it so wishes.f.For avoidance of doubt, the Notice issued by the Landlord during the pendency of these proceedings shall be of no effect.g.This Ruling settles the Complaint dated 25th July 2024. h.Each party shall bear their own costs.i.The file is marked as closed.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 15TH DAY OF JANUARY 2025 IN THE PRESENCE OF LORE FOR THE TENANT AND MS. ONDIEKI HOLDING BRIEF FOR OMWENGA FOR THE LANDLORD.HON P. KITUR - MEMBERBUSINESS PREMISES RENT TRIBUNAL