Mathew Onyinkwa Elbow Bar & Restaurant Nyanturango v Atenga [2022] KEBPRT 233 (KLR)

Mathew Onyinkwa Elbow Bar & Restaurant Nyanturango v Atenga (Tribunal Case E023 of 2021) [2022] KEBPRT 233 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 233 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E023 of 2021

Gakuhi Chege, Vice Chair

July 13, 2022

Between

Mathew Onyinkwa Elbow Bar & Restaurant Nyanturango

Applicant

and

Baria Binyanya Atenga

Respondent

Ruling

1. The tenant moved this tribunal by a reference dated November 19, 2021 complaining that the landlord had issued him with a notice to vacate by December 1, 2021 despite having paid rent for the whole year. The notice to terminate tenancy is dated September 22, 2021 and cites the following grounds:-i.That the tenant had defaulted to pay 3 months rent amounting to Kshs 54,000/-.ii.That on termination of tenancy, the landlord intends to do some major renovations of which the tenants occupation will not be possible.

2. On June 29, 2020, the parties herein entered into a tenancy agreement in which the landlord agreed to lease the premises known as Ukunda Bar and Restaurant at Nyamurongo along Kisii-Kiamokama road at a monthly rent of Kshs 18,000/- with effect from July 1, 2020. A sum of Kshs 216,000/- being one (1) year’s rent was paid. The tenant was required to pay a deposit of Kshs 100,000/- which was refundable on termination of the tenancy. The agreement was to be for a period of ten (10) years but either party could terminate it by a 3 months’ notice.

3. Upon receipt of the termination notice, the tenant challenged it through the instant proceedings seeking for injunction to restrain the landlord from evicting him. The application is dated November 12, 2021.

4. The tenant swore a supporting affidavit on November 12, 2021 stating that he paid the sum of Kshs 316,000/- which include the agreed deposit vide annexure ‘M00-3. The termination notice is marked annexure ‘M00-2’ while the lease agreement is marked ‘MOO1’.

5. It is the tenant’s case that the termination notice is illegal and a violation of his rights as a tenant.

6. The landlord filed a replying affidavit sworn on December 4, 2021 admitting entering into the tenancy agreement on June 29, 2020 at a monthly rent of Kshs 18,000/- with effect from July 1, 2020.

7. It is the landlord’s case that although the tenant paid the annual rent, he declined to pay the deposit as agreed. Part of the rent was credited to the account of the landlord’s son one Benson Atengo and that the amount paid did not amount to Kshs 316,000/- as per the bank statement marked ‘BBA-21. According to the landlord the tenant had only paid a sum of Kshs 216,000/- and had failed to pay the agreed deposit of Kshs 100,000/- and was in arrears of Kshs 54,000/- being rent for three (3) months as at December 14, 2021 when the landlord swore the replying affidavit.

8. The landlord disowns the payment receipt marked ‘M003’ attached to the tenant’s supporting affidavit which is in the name of Ester Nyamusi who was unknown to him. He denies having signed or thumb printed the said receipt.

9. The landlord deposes that he lodged a complaint at Kisii Police Station in regard to the receipt and that the matter was under investigation.

10. The landlord further accuses the tenant of undertaking developments on the demised property by extending the space occupied by him without his consent or knowledge.

11. The issue of jurisdiction of the Tribunal raised in the replying affidavit was settled vide this tribunal’s ruling of March 21, 2022 and there was no appeal preferred by the landlord against the said ruling.

12. The application was directed to be canvassed through written submissions but only the tenant filed submissions. I shall consider the submissions together with the issues for determination.

13. Based on pleadings, the following issues arise for determination herein:-(a)Whether the tenant is entitled to the reliefs sought in the application dated November 12, 2021. (b)Who is liable to pay costs?

14. The legal principles upon which applications for injunction are considered were settled by the locus classicus case of Giella v Cassman Brown &CoLtd (1973) EA 358 to wit:-i.An applicant must show a prima facie case with a probability of success.ii.An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.iii.When the court is in doubt, it will decide the application on the balance of convenience.

15. A prima facie case was defined in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR as follows:-“A prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”.

16. In the case of Assanand v Pettitt [1978] eKLR, the superior court cited with approval the English case of Preston v Luck [1884] 27 ch D at page 505 as follows on the essence of injunction.“………to keep things in status quo, so that if at the hearing the plaintiffs obtain a judgment in their favour, the defendants will have been prevented from dealing in the meantime with the property in such a way to make that judgment ineffectual”.

17. In the instant case, the parties entered into a 10 years lease and the tenant claims to have paid the agreed sum of Kshs 316,000/- inclusive of deposit of Kshs 100,000/- and one (1) year’s rent. Either party could give the other three (3) months notice to terminate the lease.

18. By a notice dated September 22, 2021, the landlord notified the tenant of her intention to terminate the tenancy on grounds of non-payment of rent and intention to renovate the premises. The alleged rent arrears of three (3) months is not specified in regard to the relevant period.

19. It is instructive to note that the notice is for less than 3 months period agreed upon under the lease as it was expressed to take effect on December 1, 2021. It is for a period of two months and 8 days contrary to clause 6 of the agreement.

20. Section 4(4) (ii) of cap 301, laws of Kenya provides as follows:-“Where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months that period shall be substituted for the said period of two months after the receipt of the tenancy notice”.

21. It is therefore clear that the landlord was supposed to issue a notice of not less than 3 months as provided under the lease agreement. The notice is to that extent defective, null and void for purposes of termination of the tenancy.

22. In the premises, the tenant was justified to file a reference as he did to challenge the said notice by way of a complaint. I do not wish to address the grounds set out in the notice to avoid embarrassing future proceedings on any other notice issued by the landlord in future on the same basis.

23. I am therefore convinced that the tenant has satisfied the principles for granting an injunction since he faced imminent termination of his tenancy on the basis of a defective notice and was therefore entitled to move to the tribunal. It is sufficient injury if an applicant demonstrates that unless the injunction sought is issued he/she would suffer an illegality as no court of equity would contenance such a state of affairs (see the case of Aikman & others v Muchoki & others [1982] eKLR at page 4/6).

24. Even if I was in doubt about the second ground, I would still grant the injunction on the balance of convenience so as to maintain the status quo and preserve the substratum of the reference.

25. On the issue of costs, the same are at the court’s discretion but always follow the event unless otherwise ordered for good reasons to be recorded. I have no good reasons to deny the applicant/tenant costs in this matter.

26. As the reference raises the same issues with the application, I shall order that this ruling applies to it under section 12(4) ofcap301, laws of Kenya as escalating the matter to hearing shall not serve any useful purpose.

27. In conclusion, the final orders that commend to me are:-i.The application dated November 12, 2021 and the reference of even date is allowed.ii.The respondent/landlord is restrained by herself, servants, agent or any other person claiming through or under her from evicting, harassing, threatening or in any other way interfering with the tenant’s/applicant’s quiet enjoyment and occupation of the business premises known as Ukunda Bar & Restaurant at Nyanturago on the Kisii-Kiamokama Road without complying with the landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301, Laws of Kenya.iii.The tenant shall continue paying the agreed rent including any arrears already accrued thereon.iv.The landlord is granted leave to issue a proper notice upon the tenant under section 9 (3) of cap 301, Laws of Kenya.v.The landlord shall pay costs of Kshs 20,000/- to the tenant within thirty (30) days hereof failing which the tenant shall defray the same against the rent account.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF JULY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence ofMiss Ochieng for the TenantNo appearance for the Landlord