Kamau v Gachie & 2 others [2022] KEBPRT 191 (KLR)

Kamau v Gachie & 2 others (Tribunal Case E004 of 2021) [2022] KEBPRT 191 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 191 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E004 of 2021

Gakuhi Chege, Vice Chair

May 11, 2022

Between

Margaret Wairimu Kamau

Applicant

and

John Mwangi Gachie

1st Respondent

Kihara & Co. Advocates

2nd Respondent

Racksam Auctioneers

3rd Respondent

Ruling

1. This ruling arises from a motion dated 4th January 2022 in which the tenant moved this Tribunal seeking for restraining orders against the Respondents from interfering with his quiet occupation and lawful enjoyment of the suit premises situate on plot no. Kabete/Kibichiko/1003, Wangige Market.

2. The application is supported by the tenant’s affidavit of even date and the grounds on the face of the application.

3. The tenant admits being in rent arrears attributing his woes to Covid-19 pandemic period which resulted into closure of entertainment joints in the year 2020. This forced her to be paying Kshs.20,000/- per month being monthly rent for the premises. She deposes that the landlord ought to be empathetic and waive half rent for a period of five months which translates to Kshs.100,000/-.

4. The tenant further deposes that the business is her sole source of livelihood and if evicted would be rendered destitute.

5. The application is opposed through a replying affidavit of the landlord/1st Respondent wherein it is admitted that the applicant is his tenant carrying on the business of a pub in the suit premises. The monthly rent is Kshs.40,000/- which was decreased to Kshs.20,000/- by the landlord during Covid-19 pendemic period. However, after the lockdown was lifted in October 2021, the normal rent of Kshs.40,000/- was reinstated.

6. As at 11th February 2022, the tenant was in arrears of Kshs.278,000/- being half rent for 5 months between January and May 2021, Kshs.98,000/- for October to December 2021 and Kshs.80,000/- for January and February 2022.

7. As such the tenant is accused of abuse of court process having been in breach of contract at the time of filing suit. The landlord denies harbouring any intention of evicting the tenant but fears that she was using the court process so as to run away with the rent in arrears.

8. Although the tenant had been given interim injunction orders on 4th January 2021, the same were discharged on 15th February 2022 on account of failure to comply with the requirement to pay rent and the landlord was granted the liberty to use lawful means to recover outstanding rent.

9. As at 15th March 2022, the tenant was said to be in arrears of Kshs.300,000/-.

10. The issue for determination herein is whether the tenant is entitled to the equitable relief of injunction. It is trite law that whoever comes to equity must come with clean hands and must be ready to do equity.

11. The most cardinal obligation of a tenant is to pay rent so as he/she can enjoy quiet possession and use of a demised premises. A tenant who comes to a court of equity must demonstrate that he/she has fulfilled all or virtually all the obligations required to be fulfilled by him or her. The tenant has failed to discharge this burden.

12. In the premises, I am not satisfied that the tenant has brought herself within the principles espoused in the case of Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358.

13. I have looked at the reference dated 4th January 2022 in which the tenant complains that the landlord and his agent were threatening to attach and evict her at anytime as a result of which she was seeking for the injunction orders sought in the application. I am thus entitled to determine the said reference together with the application under Section 12(4) of Cap. 301, Laws of Kenya without the necessity of a separate hearing.

14. In view of the foregoing, I make the following final orders:-i.The application dated 4th January, 2022 and the reference of even date are dismissed with costs.ii.The Landlord’s costs are assessed at Kshs.20,000/- against the tenant all inclusive.It is so ordered.

RULING DATED, SIGNED AND DEVELIVERED VIRTUALLY THIS 11TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kihara for the LandlordNo appearance for the Tenant