[2021] KEBPRT 382 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 38 OF 2019 (MERU)

SMART CONNECTIONS E.A LTD........................TENANT/1ST APPLICANT

FALCON COMMUNICATION LTD......................TENANT/2ND APPLICANT

GLOBENET WIRELESS LTD................................TENANT/3RD APPLICANT

VERSUS

GIETO HOLDINGS LIMITED.............................LANDLORD/RESPONDENT

RULING

The Applicant’s/Tenant’s notice of motion dated 25th February 2021 seeks the fallowing prayers;

1. Spent

2. An order of injunction do issue restraining the Landlord from interfering with the Tenant’s quiet possession of the property situated on Meru Municipality Block 1/27.

3. Spent.

4. That pending the hearing and determination of this suit, this honourable court be pleased to issue an interim injunction restraining the Respondent’s authorized agents from levying distress for rent against the Applicant/Plaintiff (sic).

5. Costs.

The grounds upon which the application is brought and the contents of the affidavit in support thereof may be summarized as follows;

1. That the Applicants who are Tenants of the Respondent have faithfully and dutifully paid rent due to the Respondent.

2. That the Respondent has issued the Tenants with a proclamation notice through Bealine Kenya Auctioneers.

3. That it is in the interests of fairness and justice that the application be allowed.

The application is opposed. The Landlord’s/Respondent’s replying affidavit may be summarized as follows;

1. That the application by the Tenants is a mere attempt to delay the case.

2. That on 30th October 2019, the Tenants herein were ordered to continue paying accruing and outstanding rent.

3. That the Tenants continue to be in rent arrears and have issued bad cheques, a fact brought to the Tenant’s attention by a letter dated 26th February 2020.

4. That the Tenants are now in arrears as follows;

a. 1st Applicant – Kshs 381,177/-.

b. 2nd Applicant – Kshs 511,351/-.

c. 3rd Applicant - Kshs 141,145/-.

The invoices to the respective Tenants are attached/exhibited as (ANM – 4).

5. That the Applicants are in contempt of the orders of the Tribunal issued on 30th October 2019.

6. That the total accumulated rent as at 1st February 2021 is the sum of Kshs 1,033,673/-.

The Applicant’s submissions may be summarized as follows;

1. That a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.

2. That the Tenants have continued to make payments with respect to the claimed but ascertained claims.

3. That the court ought to take into consideration the fact that interlocutory injunctions are meant to preserve the substratum of the suit pending its hearing and determination and is nevertheless not meant to prejudice any party to the suit.

4. That the action of levying distress against the Tenants by the Landlord will cause irreparable harm incapable of compensation by the award of damages.

5. That the balance of convenience is in favour of granting the injunctive orders sought by the Tenants.

The Respondent’s submissions may also be summarized as follows.

1. That the Tenants have not demonstrated any of the principles for the grant of orders of injunction.

2. That the Tenants have breached their obligation to pay rent.

3. That the Applicants are dishonest when they state that they have paid rent, they have not bought any evidence as to the payment of rent, indeed, they have issued bouncing cheques.

4. That the levying of distress is a common law and statutory right inherent to a Landlord.

5. That injunctive relief being an equitable relief, it is only available to parties who come to court with clean hands.

The Tenants, though seeking orders of injunction in their application dated 25th February 2021 are actually challenging the proclamation of their movable property dated 12th February 2021 by Bealine Kenya Auctioneers. Grounds (c) and (d) of the application states as follows;

(c) That the Respondent has issued the Applicant with a proclamation of attachment/repossession of movable property dated 12th February 2021 through Bealine Kenya Auctioneers.

That the Applicants are apprehensive that the said Auctioneers will effect the intended auction on 26th February 2021.

I therefore agree with counsel for the Landlord that the only issue for determination in this application is whether the Tenants/Applicants are entitled to orders of injunction restraining the Landlord from levying distress for rent against the.

The right to distress for rent is provided for under section 3(1) of the Distress for Rent Act Cap 293 of the Laws of Kenya which is in the following terms;

(3) subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears 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.”

The only prequalification for levying distress is therefore “having any rent or rent service in arrears and due.” Do the Tenants in this suit owe the Landlord/Respondent any rent arrears?

The Tenants at paragraph 3 of their supporting affidavit have averred that during their tenancy, they have faithfully and diligently paid all the rent due to the Landlord/Respondent. The Tenants have not annexed to their said affidavit any evidence of payment of the said rent. It has not been suggested anywhere in their affidavit that they made any payments to the Landlord who failed to issue payment receipts. One would in the serious circumstances of this case have expected that receipts and other evidence of payments would have been adduced.

The Tenants are under a duty to substantiate the allegation that they have faithfully paid rent to the Landlord.

On its part, the Landlord/Respondent has stated that as early as 30th October 2019, the Tenants/Applicants were ordered to continue paying the outstanding and accruing rents in the course of the suit. The Landlord states that the Tenants have not obeyed the said orders and rent continues to accrue. (The order is the one marked ANM – 1 in the Landlord’s affidavit). The Landlord has further stated that the Tenants have in the past issued bouncing cheques. The rent outstanding as at February 2020 was Kshs 285,292/- and as at February 2021, Kshs 1,033,673/-.

The Tenants have not denied these averments by the Landlord. I find the Landlord’s statement plausible and believable. The Tenants are in arrears of rent in the unchallenged sum of Kshs 1,033,673 as at February 2021.

The Landlord is entitled to exercise his rights under the law to recover the rent arrears from the Tenants/Applicants. The Tenant’s application dated 25th February 2021 lacks merit and the same is dismissed with costs to the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING READ AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 5TH AUGUST 2021 IN THE PRESENCE OF MUGWE FOR THE APPLICANT AND MISS SOI FOR THE RESPONDENT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL