[2021] KEBPRT 457 (KLR)
The tribunal found that the tenant/applicant had not paid rent from December 2020 to June 2021 and had also defaulted on electricity bills. The applicant failed to provide any information or evidence of payment despite being given an opportunity to do so. The tribunal held that the applicant had not come to court...
Source-derived case information.
- Citation
- [2021] KEBPRT 457 (KLR)
- Parties
- Applicant: Woodland Company Ltd; Respondent: John Fitzgerald Magara
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 144 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Landlord Tenant Disputes, Injunctive Relief, Rent Arrears, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Woodland Company Ltd
Applicant
John Fitzgerald Magara
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the tenant is entitled to injunctive orders restraining the landlord from interfering with the tenancy pending determination of the reference.
- 2 Whether the tenant is entitled to costs.
Ratio Decidendi
The tribunal found that the tenant/applicant had not paid rent from December 2020 to June 2021 and had also defaulted on electricity bills. The applicant failed to provide any information or evidence of payment despite being given an opportunity to do so. The tribunal held that the applicant had not come to court with clean hands and was abusing the process by seeking injunctive relief while in default. Applying the principles in Giella v Cassman Brown and Mrao v First American Bank, the tribunal concluded that the applicant had not established a prima facie case or shown that it would suffer irreparable harm. Consequently, the application for injunctive orders was dismissed with costs to...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 11th February 2021 is dismissed with costs to the landlord/respondent.
- The landlord/respondent is awarded costs of Kshs. 52,800.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO 144 OF 2021 (NAIROBI)
WOODLAND COMPANY LTD.......................................TENANT/APPLICANT
VERSUS
JOHN FITSGERALD MAGARA..........................LANDLORD/RESPONDENT
RULING
The Tenant/Applicant filed a Notice of Motion under Certificate of urgency on 11th February 2021 seeking for injunctive Orders restraining the landlord/Respondent, and the Orders that the Tenant/Applicant, seeks in the Motion Application are:
1) The Application be certified urgent and service thereof be dispensed with in the first instance (spent)
2) That an interim injunction be issued restraining the landlord, by himself, agents, servants and or employees from interfering, locking, threatening, harassing, disconnecting water and electricity, evicting disposing or in any way interfering with Applicant/Tenant occupation and enjoyment of his tenancy on house number 25 in Fortis, Industrial Park L.R NO. 12715/553 situate in Nairobi pending the hearing and determination of the Application.
3) That an interim injunction be issued restraining the landlord/Respondent by himself, agents, locking, threating, harassing, disconnecting electricity and water, evicting disposing and or in any way interfering with the Applicant/Tenant occupation and lawful enjoyment of his tenancy on warehouse no. 25 in Fortis Industrial Park LR NO. 12715/533 situate in Nairobi pending hearing and determination of the reference.
4) Costs
The Honourable Tribunal granted prayer 1 and 2 of the Application and directed that the OCS, Industrial Area Police Station ensure compliance of the court Orders. These Orders were granted on 12th February 2021.
The parties herein agreed to canvass the Application by way of written submission and accordingly the submission were filed.
It was also agreed that before the Tribunal could deliver its ruling on the Application dated 11th February 2021, the parties were to appear virtually on 8th June 2021 before the presiding officer for purposes of confirming if the Tenant/Applicant was paying rents.
This was necessitated by the complaints made by the landlord’s Advocates that the Tenant was taking advantage of the Orders granted by the Tribunal on 12th February 2021 and had not paid rent from December 2020 to date on 8th June 2021 Advocate for the landlord joined the link but surprising, the Advocate for the Tenant did not appear. It should be noted that this date had been taken by consent and there was no justification whatsoever way the Advocate failed to
The tribunal was however informed by the landlord Advocate that rent due had accumulated to a sum of Kshs. 1,037,200/=Computed from December 2020 up to June 2021.
Now the issues for Determination are:
(a) Whether the Tenant is entitled to the orders sought in its Application and
(b) Who will be entitled to costs
I have looked at the respective submission and the Applicable law.
In order for the Tenant/Applicant they needed to be entitled to the orders sought, to come to the Tribunal with clean hand which is lacking in this case. They were given an opportunity to confirm to the tribunal if rent had been paid but instead they avoided to bring any information that could have assisted the tribunal. In the absence of any information from the Tenant on the payment of rent, it will be taken that they have not paid any rents from December 2020 to June 2021.
In granting the Orders that the Tenant/Applicant seeks, I am persuaded to look at the case of Giella Vs Cassman Brown And Co. Ltd 1993, EA 360read together with Mrao Vs First American Bank Of Kenya Ltd And 2 Others and I am persuaded to make the following findings;
(a) That the Applicant has not given any reason to justify the grant of the orders sought. The Tenant having not paid rent to date is a clear abuse of the process of this tribunal.
It is also clear that as at the time of coming before the tribunal, the Tenant had not paid electricity Bills amounting to Kshs.112,745. 11/= I do not see any reason to justify the grant of the orders sought. It is also clear that the Tenant does not stand to suffer any irreparable loss.
For the foregoing reasons, I find that the Application filed by the Tenant/Applicant dated 11th February 2021 lacks merit and the same is dismissed with costs to the landlord/respondent.
I further proceed to award the landlord/Respondent costs of Kshs. 52,800/=.
HON PATRICIA MAY
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON GAKUHI CHEGE THIS 18TH DAY OF JUNE 2021 IN THE PRESENCE OF MBECHE FOR THE LANDLORD/RESPONDENT AND IN THE ABSENCE OF THE TENANT/APPLICANT.
HON GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL