Lucas Odhiambo Ogunya v Nelius Nyambura [2021] KEBPRT 151 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 595   OF 2019  (NAIROBI)

LUCAS ODHIAMBO OGUNYA.....................APPLICANT/TENANT

VERSUS

NELIUS NYAMBURA........................... RESPONDENT/LANDLORD

RULING

1.  By a reference dated 25th June 2019, the Tenant sought to stop the Landlord from construction of another structure at the door step of the suit premises as well as interfering with his tenancy.

2.  The said reference was accompanied by a motion dated 25th June 2019 supported by an affidavit of even date.  The suit premises is situate in Babadogo, Ruaraka and it is the Tenant’s case that he has been in occupation thereof for over 9 years paying a monthly rent of Kshs.5000/-

3.  The Tenant deposes that for the period he has been living at the suit premises, he has always paid monthly rent without any difficulties and he was up to date by the time of filing the case.

4.  On 23/5/2019, the  Landlord without any notice or reasonable ground decided to construct another structure at the door of the tenant’s business premises.  This was intended to evict the tenant using shortcuts and without following due process in respect of controlled tenancies.

5.  The tenant operates a barber shop business where he derives his livelihood and came to the Tribunal to seek protection against unlawful, malicious and ill-intentioned acts of the landlord.

6.  Prayers 2,3, and 4 were granted at the ex-parte stage.  On 21st August 2019, the Landlord filed a  preliminary objection stating that the subject premises was a residential premises and the Applicant was not in possession or occupation of the house and as such there is no tenant and landlady relationship.

7.  The Landlord therefore seeks for dismissal of the tenant’s motion for want of jurisdiction.

8.  The tenant filed a further affidavit sworn on 22/7/2020 wherein he deposes that he occupied the suit premises in the year 2011 pursuant to a tenancy agreement entered into with the Landlady dated 31st January 2011.  The tenancy is for month to month in respect of one (1) room in the landlord’s premises known as Babadogo plot no. 336/27 at a monthly rent of Kshs.5000/- with effect from 1st February 2011.

9.  The tenant was expected to pay the electricity bill which is shared according to lighting points among the tenants.  In the event of the tenant or the landlord wishing to terminate the agreement a one (1) month notice is required under the same.

10. The Tenant contends that the suit premises was always used as a business premises and not residential as claimed by the Landlord.  All the other tenants at the suit premises are running businesses.

11. According to the tenant, a previous inspection conducted by the Tribunal in the month of October 2019 revealed that the premises was being used for business and not residential purposes.

12. The tenant deposes that he constructed a small structure with iron sheets and timber infront of his business premises with the consent of the landlord and on 23/6/2019, the latter removed the said structure and constructed another one infornt of the Tenant’s door which  this Tribunal ordered removed.  Photos of the said structure are attached to the further affidavit.

13. Notwithstanding the Tribunal order aforesaid, the Respondent continued with the construction and installed a new tenant in the structure erected infront of the tenant’s premises.

14. On 9th March 2021, the Tenant filed another motion dated 8/3/2021 seeking for review of the orders of 2nd July 2019 to compel the Respondent to remove  the temporary structure built infront of the door to the suit premises.

15. The tenant is also seeking for an order to be allowed to pay his rent arrears of Kshs.64,800/- in instalments within 5 months and that the OCS Ruaraka Police Station do ensure compliance with the orders.

16. Instead of responding to the said application, the landlord filed an application dated 14th July 2021 seeking for vacant possession in respect of the suit premises against the tenant.  The said application was not paid for and the same is therefore not properly on record and is hereby ordered struck out and expunged from the court record.

17. On 24th August 2021, I ordered this Tribunal’s Rent Inspector to visit the suit premises and establish whether the same is obstructed by the Landlord or any other person and file a report in 30 days to enable further orders.

18. The inspection carried out on 21st September 2021 revealed that the suit premises is divided into two phases with one side being in operation with a different person and the other side, the tenant is holding on hoping the landlord will open so that he continues with his business.  Both pay rent to the same landlord.  The report confirms that there was no way through to the portion which is closed.

19. Previously on 7th November 2019, the Tribunal had visited the suit premises and recorded the following:-

“In the room, there is a bed, mattress- looks like a residential room.   The front side of the Tenant’s room has been sealed with plain sheet.  There is a structure of the landlord made of iron sheet”.

20. I have looked at the two reports and the documentary evidence tendered by the tenant which includes a business permit issued by the Nairobi City County to “Lusemaogu Grocery Shop” on 4th February 2019 and I am convinced on a balance of probabilities that the suit premises is a business premises within the meaning and interpretation of section 2(1) of Cap. 301 Laws of Kenya.

21. Although the Tenant could be using the premises currently as residential on account of having been blocked from accessing the main frontage of the building by the Landlord, I have no evidence before me that the same was leased out as a residential premises as claimed by the landlord.

22. In the premises, I am required to decide whether the Tenant has satisfied the conditions set for granting a mandatory injunction as espoused in the case of Kenya Breweries Limited & Another – vs- Washington O. Okeyo (2002) eKLR at page 2/3 wherein the Court of Appeal cited the case of Locabail International Finance Ltd –vs- Agro export and others (1986) 1ALL ER 901as follows:-

“A mandatory injunction ought not be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff.

Moreover, before granting a mandatory interlocutory  injunction the court had to feel a high degree of assurance that at the trial, it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction”.

23. In the instant case, the Applicant has demonstrated that he was trading in the suit premises prior to the acts of the landlord which started on 23/5/2019.  The landlord on that date started to construct another structure at the door of the tenant’s business premises which was stopped by an order of this Tribunal.

24. Notwithstanding the Tribunal order aforesaid, the landlord went ahead with the construction and installed a new tenant in the structure erected infront of the tenant’s shop.

25. In view of the foregoing, I am convinced that the tenant has satisfied conditions for the grant of an interlocutory mandatory injunction and I proceed to make the following orders:-

(a) The landlord is directed to reopen the door and remove the temporary structure erected infront of the tenant’s business premises forthwith and in default, the tenant is authorized to remove the same at the landlord’s cost.

(b) The Landlord shall not be entitled to any rent in respect of the suit premises from 23/5/2019 until the said structure is removed and the tenant granted unlimited access to the suit premises.

(c) Any rent already paid to the Landlord by the tenant shall be taken as advance rent in respect of the suit premises with effect from the date of unlimited access thereto or compliance with these orders.

(d) The OCS Ruaraka Police Station shall ensure compliance  with these orders.

(e) The Tenant’s reference is deemed as allowed by dint of this ruling.

(f)  Costs of the application and reference are granted to the tenant.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 12TH DAY OF NOVEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Applicant/Tenant in person

Kamenju for the Landlord