[2024] KEBPRT 195 (KLR)

Wambui v Ngururu (Tribunal Case E730 of 2023) [2024] KEBPRT 195 (KLR) (8 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 195 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E730 of 2023

P Kitur, Member

February 8, 2024

Between

Rose Wambui

Tenant

and

Moses Ngururu

Landlord

Ruling

A. Parties And Representatives 1. Rose Wambui is the tenant having rented out business premises from the landlord which is the suit property herein. (hereinafter known as the ‘tenant’)

2. The Tenant appears in person.

3. Moses Ngururu is the Landlord herein and the proprietor of the business premises which is the suit property herein. (hereinafter known as the ‘landlord’)

4. The firm of Wanjao Wanjau & Mwangi Advocates represents the landlord in this matter.

B. The Dispute Background 5. The Tenant Avers that the Landlord on the 19th May 2023, locked the business premises belonging to the tenant with trading goods inside completely halting the business of the tenant contrary to section 4 (2) cap 301 laws of Kenya.

6. She further averred that the Landlord was threatening to illegally evict her from the said premises and has proceeded to issue warnings against her approaching the business premises.

7. Feeling Aggrieved, the Tenant came before this honourable tribunal and filed a reference accompanied by a Notice of Motion Application dated July 31, 2023 seeking orders substantively summarized as follows: I.The honourable tribunal be pleased to issue orders to the respondent to re-open the suit premises for the applicant forthwith and unconditionally.

II.That pending hearing and determination of this application, a temporary injunction be hereby issued restraining the respondent, by himself, servants agents from illegally restricting access, operating business, and breaking into the suit premises.

III.That a permanent injunction be issued retraining the respondent he respondent, by himself, servants agents from illegally restricting access, operating business, breaking into the suit premises, evicting, harassing the applicant, or in any manner interfering with the tenancy of her premises. .

8. The landlord opposed the application by filing a replying affidavit dated September 13, 2023 stating that the Tenant was in breach of the orders of the tribunal issued on August 1, 2023 in which she was directed to continue paying the rent when it fell due which arrears stood at Kes 38,000/= as at August 1, 2023.

9. Further, he deposed that all efforts to settle the matter amicably, out of this tribunal were futile since the tenant, neglected and or ignored to attend a meeting set by the chief as evidenced by the Chief’s notice to attend issued to the tenant on August 8, 2023.

10. The landlord further filed an application dated September 13, 2023 in which he sought the following prayers: I.The respondent be restrained by an order of this tribunal from occupation, use, operations or entering the business premises pending the hearing and determination of the application.

II.The applicant issues the respondent an eviction notice by an order of this court.

III.That the honourabe tribunal grants an order compelling the Respondent to settle the outstanding rent arrears in respect of the business premises in the sum of Kes 38,000/=.

11. The tenant in her replying affidavit dated December 4, 2023 stated that the Landlord did not re-open her premises as was directed by this tribunal therefore rendering her unable to pay the arrears.

12. She further deposed that she was willing to continue making rent payments when they fell due

List of issues for Determination 14. The issues raised for determination are as follows;a.Whether the parties are entitled to the orders sought.

Analysis and Findings Whether the parties are entitled to the orders sought?1. The tenant came before this honourable tribunal and filed a reference accompanied by a notice of motion application dated July 31, 2023 seeking the injunction orders against the Landlord.2. It is not disputed that the tenant is in rent arrears rather what is in dispute is the total outstanding amount.3. It has been established that the tenant has failed to pay rent and continues to fail to make any payments of the rent and/or the outstanding arrears. The Tenant has also not demonstrated that they have reached out to the Respondent to agree on terms of payment on the repayment of money owed.4. Evidently, it is clear that the tenant is not willing to settle the matter amicably by her failure to attend the meeting which was set up by the chief.5. I have also considered that the tenant disregarded the tribunals orders issued on 1st August 2024 when she failed to pay the rent as they fell due and therefore acting in utter disregard for the rule of law and proceedings before this honourable tribunal.6. Applicant by rushing to court and not paying rent, has come to equity with dirty hands and as was enunciated in the matter of Olive Farm Ltd v Forty Bank Ltd HCC 215/2015, the court cannot exercise discretion in favour of such a litigant who has no respect for the rule of law.7. I am guided by the pronouncement of the learned Judge in Permanent Fold Ltd v Zhong Wu E-Commerce Kenya Co Ltd (Environment and Land Appeal E063 of 2023) [2023] KEELC 21378 (KLR) (9 November 2023) (Ruling) in which he stated as follows: “The application for an injunction being an application seeking equitable relief must fail the moment the Court finds the applicant’s hands are tainted. This is what was stated in the case; Caliph Properties Limited v Barbel Sharma & another [2015] eKLR, where the Court stated: “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.”8. On the Other hand, The landlord filed an application dated September 13, 2023 seeking inter alia; an order of eviction against the Tenant and an order compelling the tenant to pay the arrears of Kes 38,000/=.9. Accumulated rent at the time of hearing in December 2023 was Kes 43,000/=.10. During hearing, the Landlord conceded to forfeiture of rent for the months of June to September, both months inclusive, totaling Kes 24,000/= as the premises were closed during that period, leaving outstanding arrears of Kes 19,000/=.11. No evidence has been tendered to the contrary by the tenant.12. I have perused through the Notice of Motion and the Submissions by both parties and I am persuaded to agree with the Landlord that indeed the Tenant has failed to show proof of payment of the rent as alleged by herself.13. There are no statements on provided to negate the landlords claim.14. Additionally, there is no evidence tendered before this tribunal of the allegations that the Landlord has locked up the premises with the Tenants goods inside.15. In addition to the above, the landlord has demonstrated that the sit to suffer damage if the status quo is maintained for reasons that; the Tenant is still in occupation of the premises; the tenant is unwilling to pay the outstanding arrears.16. I have considered the prayers sought by the Landlord and I wish to be guided by the provisions of section 3(1) of the Distress for Rent Act, cap 293, Laws of Kenya stipulates as follows: - “subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and 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”.17. Section 12(1) (h) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301, Laws of Kenya gives this Tribunal power “to permit the levy of distress”18. The Landlord has been gracious enough to accommodate the tenant by re-opening the premises to allow conduct of her business but the same has not been reciprocated by the tenant in their obligation to pay rent or clear their arrears.19. In light of the foregoing, I therefore proceed to order as follows;

C. Orders a.The upshot is that the tenant’s application and reference both dated July 31, 2023 are hereby dismissed.

b.The landlord’s application dated September 13, 2023 is hereby allowed on the following terms: I.The tenant is hereby ordered to grant vacant possession to the landlord on or before February 29, 2024

II.The Tenant to pay the outstanding arrears as at December 2023 of Kes 19,000/= plus any other accrued rent arrears on or before February 20, 2024 failure to which the landlord shall be liberty to distress for rent.

c.Any rent deposit made by the tenant be used to offset the outstanding balance.

d.Costs are awarded to the landlord.

HON P. KITUR - MEMBERHON P. KITUR - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR ON 8TH FEBRUARY 2024 IN THE PRESENCE OF NYAMAGWA HOLDING BRIEF FOR MWANGI FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT.