[2022] KEBPRT 726 (KLR)

Watetu v Gachagua & 2 others (Tribunal Case E320 of 2022) [2022] KEBPRT 726 (KLR) (Civ) (22 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 726 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E320 of 2022

Gakuhi Chege, Vice Chair

September 22, 2022

Between

Monica Watetu

Applicant

and

Andrew Huria Gachagua

1st Respondent

Gawai Agencies

2nd Respondent

Hariki Auctioneers

3rd Respondent

Ruling

1. The tenant herein moved this tribunal seeking for restraining orders against the respondents by a reference under section 12(4) of Cap 301 and a motion dated April 7, 2022wherein she complains that the landlord had instructed auctioneers to levy distress against her in respect of exaggerated rent arrears of Kshs 34,000/- yet she owed Kshs 10,500/-.

2. On April 1, 2022, the tenant was served with a proclamation of attachment by the 3rd respondent seeking recovery of Kshs 34,000/-. The monthly rent payable for the demised premises is Kshs 5500/-. According to the tenant, she only owed two (2) months rent on account of financial difficulties which she started experiencing in 2021. She contends that she is willing to pay the arrears.

3. The applicant was issued with interim orders on April 13, 2022 restraining the respondents from levying distress or interfering with her tenancy pending hearing inter-partes.

4. The application is opposed through the 1st respondent’s replying affidavit sworn on June 17, 2022, wherein it is deposed that as at March 30, 2022, the tenant was in rent arrears of Kshs 28,000/- which shot up to Kshs 34,000/- by April 2022 and Kshs 45,000/- by June 2022. He therefore denies that the tenant only owed 2 months rent at the time when the distress was commenced.

5. According to the 1st respondent, he had a legal right to distress for rent and the same was not intended for eviction of the tenant. The suit premises was his main source of the livelihood and it would be unjust to allow the tenant to pay rent arrears in 90 days.

6. The 2nd respondent through a replying affidavit of Martin Githinji, its director/manager sworn on June 17, 2022 has annexed a rent account statement marked ‘MG1’ showing that the tenant was in rent arrears of Kshs 45,000/- as at June 2022.

7. The application was directed to be canvassed by way of written submissions and both parties complied. I am now required to determine the following issues:-(a)Whether the tenant/applicant is entitled to the reliefs sought in the reference and application dated April 7, 2022. (b)Whether the 1st respondent is entitled to levy distress for tent.(c)Who is liable to pay costs?

8. The dispute herein relates to whether the tenant is in rent arrears and if so whether the landlord is entitled to levy distress for rent under the Distress for Rent Act Cap 293, Laws of Kenya.

9. Section 3(1) of the Distress for Rent Act, provides that any person having any rent or rent service in arrears and due upon any grant, lease, demise or contract shall have the same remedy for the recovery of that rent or rent service as is given by the common law of England in a similar case.

10. In the instant case, the tenant admits that at the time when the proclamation was issued by the 3rd respondent, she was in rent arrears of two (2) months. However according to the 1st and 2nd respondents, the arrears stood at Kshs 34,000/- by the time of the impugned distress.

11. I have looked at the rent account statement marked ‘MG1’ and it clearly shows the debits and credits made against the tenant’s account and as at June 2022, the tenant was in rent arrears of Kshs 45,000/-.

12. It is trite law that whoever comes to equity must come with clean hands and must demonstrate that he/she has fulfilled all obligations required on his/her part before seeking for equitable remedy of injunction.

13. The tenant has not disputed the rent account statement neither has she produced evidence that she has paid the amount claimed against her by the landlord. In the circumstances I am unable to find that she has a prima facie case neither do I find that she would suffer irreparable injury should the injunction sought be denied in line with Giella v Cassman Brown & Co Ltd (1973)EA 358.

14. I am fortified in this regard by the decision of the superior court in the case of Samuel Kipkori Ngeno & Another v Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR at paragraphs 9 and 12 where it was held as follows:-“9. A tenant’s first and main obligation is to pay rent as and when it becomes due for the landlord has the right to an income for his investment. Why would a tenant allow himself to fall into such huge arrears of rent”.“12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is underserving of the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principle obligation of paying rent as and when it becomes due”.

15. As regards costs, the same are in the court’s discretion under section 12(1) (k) of Cap 301 but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny costs to the respondents.

16. In conclusion, the final orders which commend to me are:-i.The tenant’s reference and application dated April 7, 2022 is dismissed with costs to the respondents.ii.The interim orders issued on April 13, 2022 are hereby discharged and/or vacated forthwith.iii.The landlord is entitled to distress for rent and the further court fees payable in doing so is hereby waived.iv.The tenant shall pay costs of Kshs 15,000/- to the respondents.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF SEPTEMBER, 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Tenant present in personNo appearance for the Respondents