Gilbert P.O. Galana t/a Afrowide Cbo Health Centre v Umoja Service Station Ltd [2022] KEBPRT 86 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 23  OF 2020 (NYERI)

GILBERT P.O. GALANA T/A AFROWIDE CBO HEALTH CENTRE.... TENANT/APPLICANT

VERSUS

UMOJA SERVICE STATION LTD...................................................... LANDLORD/RESPONDENT

RULING

1. On 2nd March 2020, the tenant moved this Tribunal seeking for a total of seven (7) reliefs.  Prayers 1,2,3, 4 and 6 were granted ex-parte on the same day.  Only prayers 5 and 7 remained for determination thereafter.

2. Prayer 5 is seeking that the Respondent be ordered not to terminate the applicant’s tenancy or evict him without due process of this Tribunal.

3. Prayer 6 is seeking for costs of the application.  The application is supported by the affidavit of tenant of even date and the grounds on the face thereof.

4. The applicant deposes that he occupies 3 rooms i.e no. 12, 13 and 14 within the Respondents premises where he runs a health and fitness club and a nutrition and diabetics consultancy centre.

5. At paragraph 4 of his affidavit, the applicant admitted being in rent arrears which he had a mutual arrangement and scheme of settlement.

6. According to the applicant, the landlord was applying illegal tactics of levying distress for rent and on 27th & 28th February 2020 locked the main entrance to two (2) rooms by placing padlocks thereon.

7. This resulted into the tenant approaching the Tribunal to enable access to the business premises pursuant to which he was granted orders on 2nd March 2020.

8. The application is opposed through a replying affidavit sworn on 18th February 2021 by its chairman one David N. Muthoga sworn on 18th February 2021 wherein it is denied that the landlord had interfered with the tenant’s peaceful occupation of the premises.

9. It is the landlord’s case that the tenant had variously  been indulged at his written requests as per annextures marked “DNM1’.

10. The Tenant is accused of committing fraud by presenting to the landlord fake banking slips claiming to have paid rent as per annextures “DM2’.  As a result, the premises were locked on 27th February 2020 with  the consent of the tenant who had not paid rent or presented any evidence of payment of rent.  He promised to provide banking slips for the premises to be opened.

11. A day thereafter, the tenant presented the alleged banking slips and upon examination, it was found that no banking had been done into the landlord’s account.

12. Aware of the said fact, the tenant moved this Tribunal and obtained orders for reopening of the premises yet he knew that the closure was by consent.  He had not paid the rent arrears amounting to Kshs.5,790,736/29 as at February 2021 as shown in annexture ‘DNM3’.

13. The tenant failed to disclose material facts to the Tribunal leading to issuance of underserving orders according to the landlord.  The landlord therefore prays for dismissal of the application and vacation of the orders issued on 2nd March 2020 which were assisting him to escape his obligations.

14. The application was ordered to be canvassed by way of written submissions and both parties complied.

15. The issues for determination in this matter are:-

a. Whether the tenant obtained ex-parte orders through concealment of material facts.

b. Whether the ex-parte orders ought to be upheld or vacated.

c. Who is liable to pay costs?.

16. I have looked at the pleadings filed by both parties and  it is not in dispute that the tenant is in collosal rent arrears.  Although he pleaded that he had fallen into arrears, he failed to disclose the amount in arrears which as at March 2020 according to annexture DNM3 stood at a collosal sum of Kshs.5,020,736. 29.

17. I agree with the landlord that had the tenant disclosed the said fact, this Tribunal would not have given the orders it issued on 2nd March 2020 in his favour.  In my view, the tenant came to this court with unclean hands and was underserving of the orders given.

18. In this regard, I am fortified by the decision in the case of Samuel  Kipkori Ngeno & Another – vs- 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 from 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 principal obligation of paying rent as and when it becomes due”.

19. On the question of effects of non-disclosure of material facts, I only need to cite the case of  Gabriel Kariuki Gitonga & 2 Others -vs- Redken Wells Ltd & 11 others (2021) eKLR wherein the decision in the King – vs- The General commissioners for the purposes of income tax Act for the District of Kensington ex-parte princess Edmond De Pligac (1917) 1KB 486 wherein Warrington L.J stated at page 509 as follows:-

“It is perfectly well settled that a person who makes an ex-parte application to the court that is to say, in the absence of the person who will be affected by that which the court is asked to do is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings and he will be deprived of any advantage he may have already obtained by him.  That is perfectly plain and requires no authority to justify it”.

20. Guided by the two decisions, I find and hold that the ex-parte orders issued herein in favour of the tenant were obtained through concealment of a material fact that he was in collosal rent arrears which he had no acceptable or any proposal to settle.

21. I further hold that the ex-parte orders ought to be vacated forthwith and costs awarded to the Respondent.

2. In the premises, the following final orders commend to me:-

i. The application dated 2nd March 2020 together with the accompanying reference is hereby dismissed with costs.

ii. The ex-parte orders issued on 2nd March 2020 are hereby vacated and/or set aside.

iii. Costs of Kshs.30,000/- awarded to the landlord against the Tenant.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF FEBRUARY, 2022

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Miss Simiyu holding brief for Ombongi for Tenant/Applicant

Mr. Muchiri for the Landlord/Respondent