[2021] KEBPRT 303 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 169 OF 2021 (NAIROBI)

SAMUEL GACHURU WAMBUGU T/A

SUMMARY COMMUNICATION.......................................................TENANT/APPLICANT

VERSUS

GEORGE NDICU MBUGUA T/A

FREELINE GENERAL AGENCIES.......................................LANDLORD/RESPONDENT

RULING

1. The Tenant/Applicant by his application dated 22nd February 2021 has sought injunctive relief against the Landlord/Respondent and has also sought orders to the effect that the Landlord be ordered not to demand rent for the period that the Tenant’s business remained closed, the OCS Lang’ata Police Station to ensure the Tenant’s business is opened forthwith and the Tenant to be allowed to deposit monthly rent at the Tribunal in the event that the Landlord declines to accept the same.

2. The Tenant has sworn an affidavit in support of the application and a further affidavit in response to the Respondent’s replying affidavit. Both parties have filed written submissions in support of their cases and I now proceed to summarize them as follows.

3. The Tenant’s affidavit is to the effect;

a. That he has leased a business premises from the Landlord at an agreed rent of Kshs 10,000/- per month exclusive of charges for security and garbage collection.

b. That in September 2018, the Tenant paid the rent for the month by cheque.

c. That on 1st January 2019, the Tenant executed a lease with the Landlord for a period of five years.

d. That the Tenant’s business was managed by an agent Mary Nduta Wambui who would pay rent through the Tenant’s other company, On the Move Associates.

e. That the Tenant paid rent to the Landlord from September 2018 to March 2020 when he instructed the said Mary Nduta Wambui to commence paying rent to the Landlord using proceeds from the business.

f. That when the Tenant attempted to obtain the keys form Mary Nduta Wambui, she indicated that she had given the same to the Landlord.

g. That failing to get the keys from the Landlord, the Tenant, on 17th February 2021 cut the padlock and took over the premises.

h. That on 20th February 2021, the Landlord locked the premises.

4. The Landlord’s replying affidavit is to the effect;

a. That the lease agreement annexed in the Applicant’s supporting affidavit is forged for the reasons that the Landlord is the only one who signs all the leases filed by his Tenants.

b. That one Peter Ngugi who witnessed the lease agreement is unknown to the Landlord.

c. That the Tenant/Applicant herein is unknown to the Landlord.

d. That the Landlord is only aware that he has leased the suit premises to one Mary Nduta and she is the only one who has been paying rent to him.

e. That the purported Tenant (the Applicant) is in rent arrears since January 2021 and the Landlord intends to levy distress against him and also eject him from the premises.

f. That the Tenant is dishonest and malicious and does not have the locus standi to file this suit.

5. The Tenant’s further affidavit may also be summarized as follows;

a. That the Respondent’s response is a scheme by Mary Nduta to use the Landlord to frustrate the Tenant.

b. That the Landlord herein had leased to the Tenant a residential premises in the same building where the suit premises is located vide a lease agreement dated 12th February 2012and pursuant to which the Tenant paid rent into the bank accounts held by the Landlord.

c. That the Applicant took over possession of the leased premises in September 2018.

d. That the Landlord’s agent Peter Mwaniki executed the lease agreement dated 1st January 2019 on behalf of the Landlord, and Peter Ngugi Thiong’o was the Applicant’s witness.

e. That the said Peter Mwaniki used to receive rent on behalf of the Landlord from the Applicant in respect of the residential premises occupied by the Applicant herein in the same building where the suit premises is located.

f. That a report by one Mr Emmanuel Karisa Kenga, a document examiner shows that the lease in dispute and the receipt issued on behalf of the Landlord for the residential premises were all executed under the hand of the same person, Peter Mwaniki.

g. That the Landlord has been collecting rent from the Tenant and he continues to demand for the same from the Tenant.

h. That the allegation that rent was paid by Mary Nduta from her own pocket are untrue. The money came from the Tenant’s business proceeds.

i. That the Tenant is not in any rent arrears save for the month of February 2021 when the premises was closed by the Landlord and which is a subject of the prayers in this application.

j. That the Tenant has not been arraigned in any court for forgery.

6. The Tenant’s submissions may be summarized as follows;

a. That the Tenant has been in possession of the suit premises since 2018vide a lease agreement executed by the Landlord’s agent.

b. That the Landlord has all along been receiving rent from the Tenant.

c. That Peter Ngungi Thiong’o who was the Tenant’s witness on the lease agreement has sworn an affidavit confirming he witnessed the lease agreement.

d. That in the event that an injunction is granted to the Tenant, the Landlord will suffer no injury as the Tenant continues to pay rent.

e. That the Tenant has met the threshold for the grant of the orders of injunction sought as set out in the Giella Vs Cassman Brown Case.

f. That the balance of convenience tilts in the favour of the Tenant.

7. The Landlord’s submissions may also be submissions may also be summarized as follows;

a. That the Landlord has denied that he executed the lease dated 8th April 2021 and further that the same did not emanate from his office.

b. That it is imperative that the issue of the signatures be verified at a full hearing.

c. That the fact that the Landlord has complied with the court orders is not a reason to deny him a chance to call witnesses and adduce oral evidence.

d. That all rent payments have been made by a third party who is recognized by the Landlord as his Tenant.

e. That the Tenant herein has failed to enjoin Mary Nduta in these proceedings to confirm that the demised premises are hers.

f. That the Tenant who is not paying rent should be ordered to produce receipts as evidence of any rent payments.

g. That the Tenant has not met the threshold for the grant of the orders sought.

8. The issues that arise for determination from the pleadings and submissions of the parties in my humble view are the following;

a. Whether there exists a tenancy relationship between the Applicant and the Landlord.

b. Whether the Applicant is entitled to the orders sought in his application dated 22nd February 2021.

9. On Issue No. (a);

a. The Tenant’s position is that he identified the suit property in September 2018 when it fell vacant. The Tenant was at that time a Tenant of the Landlord over a residential premises in the same building. The Tenant paid the rent of September 2018 through a cheque and the rent deposit in two instalments.

b. I have seen the cheque deposit slip received by the CBA Bank on 11th December 2018. It is for the sum of Kshs 40,000/-.

c. The Tenant has further stated that on 1st January 2019, he executed a written lease agreement between himself and the Landlord for a period of five years.

d. I have seen the lease the Tenant/Applicant is referring to. The lease has been executed by the Applicant, Freeline General Agencies and a witness, Peter Ngugi Thiong’o.

e. The Landlord has held the position that the lease is a forgery and has threatened to lodge a complaint over the forged document. He has stated that the signature for freeline G. Agencies is not his.

f. The Applicant has deponed that the lease dated 1st January 2019 was executed by one Peter Mwaniki as an authorized agent of the Landlord. It is important to note at this point that the Landlord has not denied that Peter Mwaniki was his agent.

g. The only person he denies is Peter Ngugi Thiong’o who, I must point out here, was a witness in the lease agreement for the Tenant. The Tenant has not suggested anywhere in the pleadings that Peter Ngugi Thiong’o was known to the Landlord.

h. The Tenant/Applicant has also deponed in his affidavit that Peter Mwaniki used to issue him with receipts for the residential house for rent paid to the Landlord herein. The Tenant took the trouble to compare the signatures in the receipts for rent and the signature appearing in the lease agreement.

i. A report prepared by Emmanuel Kenga and annexed to the further affidavit of the Tenant concludes that there are similarities on the signatures indicating that they are by the same author.

j. The Tenant has further deponed that Peter Mwaniki has managed the Landlord’s premises from 2014 to January 2021. There is evidence at paragraph 10 of the Tenant’s further affidavit that the Landlord’s agent continues to demand for rent from the Tenant.

k. Although the Landlord has indicated that Mary Nduta is the Tenant, he recognizes the evidence by the Tenant contradicts that position. The Tenant has materially explained how the said Mary Nduta came to be in the premises. He has obtained court orders restraining the said Nduta from operating in his wines and spirits shop, the suit premises. The Landlord has not disputed this.

l. The Tenant being in possession of the suit premises and having a lease agreement executed under the circumstances explained in his affidavits I do find that at this stage, it would be safe to regard the Applicant as a Tenant of the Respondent.

10. On Issue No (b)

a. Has the Tenant/Applicant established a prima facie case?

b. The Tenant has been able to establish a connection between the Landlord herein and one Peter Mwaniki though the receipt issued for the payment of rent of the Tenant’s residential house and the signature in the lease executed by the parties on 1st January 2019. The Tenant has also clearly demonstrated that he is not a stranger to the Landlord.

c. There is evidence that the Landlord’s agents are still demanding the rent for the suit premises from the Tenant/Applicant. The action of the Landlord in locking the Tenant’s business premises are actionable.

d. I do find that in the circumstances, the Tenant has established a prima facie case with a probability of success.

e. In the case of Mrao Ltd Vs First American Bank of Kenya & 2 Others, a prima facie case was defined as;

“A prima facie case in a civil litigation includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a Tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation on a rebuttal from the latter.”

f. The Landlord has alleged in his submissions and in his affidavit that the lease agreement that the Tenant is relying on is a forgery. These are very serious allegations and indeed the Landlord has threatened to make a report over the same.

g. I agree with the submissions of the Landlord to the effect that;

“This is a serious forgery allegation which cannot casually be dispensed with by way of an application. It is imperative for the evidence and signatures to be canvassed in a full hearing.”

h. The determination of whether or not the lease is forged is therefore one that can only be made upon the hearing of this matter and I am therefore not able to delve into the case on the merits at this stage. The Landlord will have occasion to call witnesses and adduce oral evidence as suggested in his submissions.

i. I will allow the Tenant’s application dated 22nd February 2021 in terms of prayer 4 thereof and further order that the Tenant continues to pay rent and honor his other obligations under the tenancy pending the hearing and determination of the complaint herein.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this10thday of September 2021 in the presence of Mr Wanjohi for the Landlord/Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL