Bunuke v Investments & another [2022] KEBPRT 132 (KLR)

Bunuke v Investments & another (Tribunal Case E023 of 2022) [2022] KEBPRT 132 (KLR) (Civ) (10 June 2022) (Ruling)

Neutral citation: [2022] KEBPRT 132 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E023 of 2022

Gakuhi Chege, Vice Chair

June 10, 2022

Between

Joel Bunuke

Applicant

and

Robert Maghesho Shaki ta Maghesho Stall Investments

1st Respondent

Much Williams Investment Auctioneers

2nd Respondent

Ruling

1. The applicant herein is a tenant of the 1st Respondent in a business premises on plot no. Mombasa Block XVII/653 MI known as Magesho Stall investment paying a monthly rent of Kshs.14,500/-.

2. On 16th November 2021, the 1st Respondent sent the 2nd Respondent to recover rent arrears owing by the tenant as a result of which the latter served a proclamation marked ‘JB-2’. The tenant through his affidavit sworn on 26th January 2022 at paragraph 7 admit having been in arrears of Kshs.39,000/- blaming effects of Covid-19 pandemic. Despite explaining his predicament to the landlord, he was adamant to levy distress.

3. It is against the said background that the tenant came to this Tribunal vide a complaint dated 26th January 2022 and a motion of even date.

4. Interim orders of injunction were granted on 1st February 2022 staying execution of the proclamation notice pending hearing interpartes.

5. Upon service of the application, the landlord filed a motion dated 14th February 2022 seeking vacant possession of the suit premises on the grounds that it was “the only available avenue acceptable and applicable by law”.

6. The application is supported by the affidavit of Caroline Moraa Abunda who is the wife to the 1st Respondent/Landlord and caretaker of the commercial building housing the suit premises.

7. According to the said affidavit, the tenant was served with a notice to terminate tenancy on 29/10/2021 on account of refusal to pay rent. The notice and affidavit of service are marked annexures ‘2A & 2B’ respectively. This resulted into the landlord instructing the 2nd Respondent to levy distress in recovery of Kshs.43,000/- rent arrears.

8. According to the landlord, the tenant was a habitual rent defaulter whose rent account stood at Kshs.67,500/- as at 14th February 2022. It is on that basis that the application is founded.

9. The tenant did not file a response to the application despite being given seven (7) days to do so on 2nd March 2022.

10. It is not in dispute that the tenant owed rent arrears to the landlord by the time the 2nd Respondent was sent to recover the same.

11. The tenant through his application dated 26th January 2021 is seeking for injunction to restrain the Respondents from interfering with his tenancy and that he be allowed to deposit rent in the Tribunal pending determination of the main suit.

12. In my considered view, a tenant who has failed to honour his most cardinal obligation to pay rent cannot be entitled to the equitable remedy of injunction (see the case of Samuel Kipkori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & another(2013) eKLR at paragraphs 9 & 12).

13. The tenant has come to a court of equity with unclean hands having failed to demonstrate that he has fulfilled all the obligations required on his part under the contract. In the circumstances, the landlord was entitled to levy distress for rent under Section 3 of the Distress for Rent Act, Cap. 293, Laws of Kenya.

14. It is on the basis of the foregoing observations that I find and hold that the tenant has failed to bring himself within the principles for granting an injunction espoused in the case of Giella – vs- Cassman Brown & Co. Ltd(1973) EA 358.

15. In regard to the Landlord’s application dated 14/2/2022, I have already observed that there was no response by the tenant. It is therefore unopposed. I have noted that it is predicated upon a notice to terminate tenancy issued under section 4(2) of Cap. 301 on 28th October 2021 on grounds of the tenants irregular payment of rent and being in rent arrears of Kshs.30,500/-. It also cites failure to execute a tenancy agreement as a ground. Whereas the first ground is founded on Cap. 301, Laws of Kenya, the second one is not. There is no law that requires a tenant to execute a written tenancy agreement in respect of a controlled tenancy.

16. The tenant has already admitted being in rent arrears and as such the first ground on the notice is well founded. The tenant has not responded and it is therefore assumed that he did not challenge the termination notice which took effect on 1st January 2022. Pursuant to section 10 of Cap. 301, the notice having taken effect terminated the tenancy herein and this Tribunal is entitled to grant orders of possession under section 12 (1) (e ) of Cap. 301, Laws of Kenya in favour of the landlord.

17. In regard to costs, the same are in the court’s discretion but always follow the event unless otherwise ordered for good reasons. I have no reason to deny costs to the Respondents.

18. In conclusion therefore, the final orders that commend to me on the two applications and the complaint are:-i.The tenant’s application dated 26th January 2021 and the complaint of even date is dismissed with costs.ii.The landlord’s application dated 14th February 2022 is allowed in terms of prayers 2 and 3 thereof with costs.iii.The interim orders given on 1st February 2022 in favour of the tenant are discharged/vacated forthwith.iv.The tenant shall pay all the rent in arrears and the landlord is authorized to use lawful means to recover the same.v.The Respondent’s costs are assessed at Kshs.25,000/- against the tenant.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 10TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Wairagu holding brief for Waithira for LandlordNo appearance by Tenant