Atieno v Ogaga [2022] KEBPRT 179 (KLR)

Atieno v Ogaga (Tribunal Case E004 of 2022) [2022] KEBPRT 179 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 179 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E004 of 2022

Gakuhi Chege, Vice Chair

May 5, 2022

Between

Millicent Atieno

Applicant

and

Charles Obondi Ogaga

Respondent

Ruling

1. Before me is an application for restraining orders brought by the tenant against the landlord through a motion dated January 10, 2022 to which some notices to terminate tenancy are annexed to the supporting affidavit.

2. On the other hand, the landlord has filed a replying affidavit sworn on February 1, 2022 attaching among other documents a notice marked “C004” which is not very clear.

3. At the end of the day, this tribunal’s required to interrogate the validity of the said notices including issues of service and genuineness of the ground upon which termination of the tenancy is sought by the landlord.

4. The purpose of injunction was espoused in the case of Assanand v Pettitt [1978] eKLR at page 2/5 as follows:-“The object of a temporary injunction as Mr Khanna has reminded me, are as stated by Cotton L J in Preston v Luck [1884]27 ch d at P 505:-“To keep things in status quo, so that, if at the hearing the plaintiff obtain a judgment in their favour, the defendants will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual”.

5. The court in the said case considered the principles upon which courts exercise such discretion as follows:-“Broadly speaking three matters have to be considered by the court in exercising judicially its undoubted judicial discretion whether to grant this very effective remedy, namely:-(a)Whether the applicant has shown that he has a prima facie case with a probability of success……….(b)Whether on a consideration of the balance of convenience, the plaintiff will suffer more if the injunction is not granted than the defendant will if it is………………….(c)Whether damages will be the adequate remedy. This is not so, for example, where the disruption caused by the defendant’s action is unjustified and so great that damages are not an adequate remedy”.

6. The tenant approached this tribunal fearing that unless she was offered interim protection by way of an order of injunction, she would be evicted from the demised premises based on defective notices issued by the landlord.

7. On the other hand, the landlord maintains that he is entitled to obtain possession based on various notices issued upon the tenant to enable him to renovate the dilapidated premises in order to meet current market demand.

8. I am satisfied that the tenant has established a basis for maintaining the status quo pending the hearing of the main reference.

9. In conclusion therefore, the following orders commend to me:-(i)A temporary order of injunction be and is hereby issued restraining the respondent from evicting the applicant/tenant pending hearing of the reference.(ii)The OCS, Oyugis Police Station shall ensure compliance with the orders herein.(iii)Both parties shall comply with order 11 of the Civil Procedure Rules, 2010 by filing and exchanging witnesses statements and documents to be relied upon during the hearing within the next thirty (30) days hereof.(iv)The costs of the application shall abide the outcome of the reference.It is so ordered.

RULING DATED, SIGNED AND DELIVERED THIS 5TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of the parties.