John Akala Omollo v Harrison Mwangi & Stabua Mwangi [2021] KEBPRT 167 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E184   OF 2021  (NAIROBI)

JOHN AKALA OMOLLO.............................................................TENANT/APPLICANT

VERSUS

HARRISON MWANGI.................................................LANDLORD/1ST RESPONDENT

STABUA MWANGI.....................................................LANDLADY/2ND RESPONDENT

RULING

1.  Through an application dated 8th June 2021, the Tenant moved this Tribunal seeking for restraining orders against the Respondents from interfering with his tenancy pending hearing of the application inter-partes.

2.  On 14th June 2021, the Tenant’s application was allowed in terms of prayer 2 thereof and I directed him to pay Kshs.17,000/- within 30 days thereof failing which the orders would automatically lapse.

3.  On 18th July 2021, the Tenant brought a second application of even date seeking reinstatement of the orders of 14th June 2021 stating that his Microsoft teams application malfunctioned while he tried to address the court.  He annexed a rent payment Mpesa message for Kshs.3,000/- made on 8th July 2021.

4.  According to the Tenant, he would find it hard to relocate his school going children who are young to a new environment from the current location which they are accustomed to.  He therefore seeks reinstatement of the orders of 14th June 2021.

5.  The application is opposed through the amended replying affidavit of the Landlord sworn on 20th July 2021 wherein it is denied that the Applicant has dutifully and religiously paid rent.  The Applicant owed Kshs.47,440/- as at the date of swearing the said affidavit.

6.  The Applicant is accused of failing to comply with the order of 14/6/2021 by not paying the admitted arrears of Kshs.17,000/- as required.

7.  The applicant is said to have made an illegal power connection which was removed by Kenya Power & Lighting co. Ltd.

8.  It is the Respondent’s case that the Applicant agreed to vacate the suit premises before the Chief by 31st August 2021 and by 31st July 2020 had accumulated arrears of Kshs.89,140/-.

9.  The Applicant is accused of converting the suit premises to a residential cum business premises and is therefore not entitled to the orders sought.

10. The Applicant filed a further affidavit sworn on 28th July 2021 stating that he has all along complied with the Court’s directions.  According to him, the Landlord refused to accept partial payments of rent and in one occasion reversed money sent to him.

11. The Tenant states that he has been paying rent through Mpesa using his own phone number or his wife’s.  He alleges making some cash payments which were not accounted for.

12. He denies illegal power disconnection and the allegation that he converted the business premises into a residential one.

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

14. The issues for determination going by the pleadings and submissions are:-

(a) Whether the orders dated 14th June 2021 ought to be reinstated.

(b) Who is liable to pay costs of the application?

15. I have looked at the application dated 18th July 2021 and note that the orders given on 14th June 2021 were conditional.  There is no evidence that the applicant paid the entire sum of Kshs.17000/- admitted as rent arrears in terms of the said orders.

16. It is a principle of equity that he who comes to equity must come with clean hands.  A court of  Equity cannot be requested to exercise discretion in favour of a party who has failed to follow the law.

17. One of the cardinal obligations of a Tenant is to pay rent and unless, the tenant is able to demonstrate the same it would be inequitable to grant an injunction against the Landlord.

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) e KLR at Paragraphs 9 & 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. The Tenant herein is said to have been in arrears of Kshs.47,440/- as at 20th July 2021.  The Mpesa statements annexed to the further affidavit of the Tenant do not prove payment of the said arrears in line with sections 107 and 108 of the Evidence Act, Cap 80, Laws of Kenya.

20. The application pursuant to which the orders of 14th June 2021 were made was dismissed on 13th July 2021 for want of attendance.  The applicant has not sought for its reinstatement and even if I were to reinstate the orders made on 14th June 2021, the same would have no legs to stand on which would be fallacious and contrary to the law.

21. In the premises, I proceed to dismiss the application dated 8th June 2021 with costs to the Respondents.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 22ND  DAY OF OCTOBER 2021

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

MR. MUGU FOR THE LANDLORD

MR. ODHIAMBO FOR THE TENANT