Mbugua v Muthara [2025] KEBPRT 256 (KLR)

Mbugua v Muthara (Tribunal Case E045 of 2024) [2025] KEBPRT 256 (KLR) (12 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 256 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E045 of 2024

P Kitur, Member

March 12, 2025

Between

Leonard Ndungu Mbugua

Applicant

and

Robert Njoka Muthara

Respondent

Ruling

A. Parties 1. The Applicant operates a shop within the suit premises as a tenant of the Respondent/Landlord.

2. The firm of Dennis Kariuki & Company Advocates represents the Applicant/Tenant.

3. The Respondent is the registered owner of the property located at L.R No Embu Township 112/114 (the suit premises).

4. The firm of Kinyua Muriithi & Company Advocates represents the Respondent/Landlord.

B. The Dispute Background 5. The parties have had a tenancy relationship since 2009 for the suit premises, which include shops 1, 2, and 3, at a rate of Kshs. 15,000/- per unit.

6. The tenancy proceeded without interruption until the month of July 2024 when the Applicant filed a reference under section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 Laws of Kenya (the Act) to this tribunal, raising a complaint against the Landlord. The Applicant accused the Landlord of attaching items belonging to the Applicant for auction and refusing to accept rent.

7. The Applicant filed a Notice of Motion Application dated 26th July 2024 under a certificate of urgency, seeking the following orders:-i.Spentii.That pending hearing of the application interparties the landlord/respondent, his agent/servant or anybody claiming through him be restrained from evicting or harassing the applicant from the suit premises situated at Plot L.R No. Embu Municipality 112/114 Shop No. 1 Embu Town.iii.That Giant auctioneers or any Auctioneers be restrained from attaching the applicants/tenants goods/items already proclaimed and the landlord be restrained from increasing rent.iv.That the Respondent/Landlord be ordered to accept rent of Kshs. 324,000/= (for Six Months) and in default he be allowed to deposit the same in the Rent Tribunal Immediately.v.That the OSC Embu Police Station to provide security.vi.The costs of the application be provided for.

8. The application was grounded on the premises that the Landlord, through his auctioneer, had attached the Applicant's items, refused to accept the current rent, and demanded a deposit of Kshs. 234,000/-. The Applicant alleged that the Landlord intended to increase rent without due process and that failure to restrain the Respondent might lead to eviction, causing irreparable loss and damage.

9. The Respondent filed a replying affidavit dated 7th August 2024, opposing the application. The affidavit detailed damages caused to its property by the Applicant, stating that the suit property included shop 1 and the rear lodging comprising 18 rooms, with respective arrears of Kshs. 30,000/- for shop 1 and Kshs. 432,000/- for the lodgings. The Respondent confirmed instructing auctioneers to levy distress for rent arrears recovery and claimed that the obtained injunction had been misused to unlawfully destroy premises, depriving the Landlord of rent and ownership rights. The Respondent argued that the Applicant approached the court with unclean hands.

10. The Applicant filed a second application dated 21st August 2024, seeking the following orders: (i) A mandatory injunction compelling the Landlord to restore electricity supply to the suit premises and (ii) a restraining order against the Landlord from disconnecting and/or interfering with the electricity supply to the suit premises.

11. This application was based on the grounds that the Respondent disconnected the electricity supply to the suit premises without justifiable reason. The Applicant stated that the power company directed them to obtain a court order to restore the electricity supply upon addressing the complaint. Power was restored and the Application was marked as spent.

12. The Respondent filed a replying affidavit in response, stating that the application pertained to shops 2 and 3, which were not subject to the initial complaint. The Respondent argued that the electricity shutdown was necessary due to exposed wiring caused by destructions. The Respondent claimed that the problems relating to the suit premises resulted from the massive destruction caused by the Applicant.

13. The Applicant filed a further supporting affidavit, stating that they vacated the 18 rear rooms and intended to renovate the premises as per the lease agreement terms. The Applicant further argued that the Respondent increased rent for the shops without notice or consent of the Applicant/Tenant and refused to accept the rent of Kshs. 270,000/-.

14. The court directed the parties to dispose of the application through written submissions, which they complied.

15. It is the Applicant’s case that the Respondent seeks to recover rent arrears on the basis of a revised lease agreement which was not executed by the parties hence not valid and enforceable. That the Respondent seeks to alter the terms of the lease unilaterally without following due procedures of the law. That the Respondent failed to observe the law in attempting to alter the terms of the original lease and that eviction on the basis of the terms of an illegal lease is unlawful.

16. It is the Respondent's case that the Applicant is in default and that it sought to evict the Applicant for arrears accrued under the terms of the lease of 2009. That the reference is unclear as to which shop is complained about. That the Applicant vacated shop 3 therefore any complaint on that shop is not rightfully before this tribunal and that the tribunal lacks jurisdiction. That the applicant has not demonstrated that the respondent refused to accept rent.

C. List of Issues for Determination 17. Whether the Application dated 26th July 2024 is merited.

D. Analysis and Findings 18. The Applicant seeks an injunction preventing eviction and harassment from the Respondent, asserting that eviction would cause irreparable harm. The Respondent, however, argues that the Applicant has caused destruction to the property, resulting in arrears of rent and damages to the premises.

19. The threshold for grant of injunctive orders was set out in the case of Giella Vs Cassman Brown (1973) EA 358 and was also reiterated in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No 77 of 2012 (2014)eKLR, where the Court of Appeal held that;“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to (a), establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.These are the three pillars on which rests the foundation of any order of injunction interlocutory or permanent. it is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially.”

20. Therefore, it is not in doubt that for the Tribunal to find that the Applicant is entitled to the injunctive orders sought, the Tenant has to prove the three principles sequentially.

21. Has the Tenant/Applicant therefore established that he has prima facie case? In the case of Mrao Ltd Vs First American Bank Of Kenya Ltd (2003) eKLR, the Court of Appeal gave a determination on a prima facie case. The court stated that:“In civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

22. The Applicant has demonstrated that the Respondent's actions, including attempts to evict and harass the Applicant, have caused undue distress. The Tribunal recognizes that the Applicant has occupied the premises for over a decade, and while the rent arrears are contested, the Applicant has continued to offer payments and seeks to resolve the matter amicably. The Tribunal finds and holds that the tenant has established a prima facie case as they have an interest over the demised property that is apparently threatened.

23. The prayer number 2 of the application, the applicant seeks an injunction restraining the Respondent and its agent from evicting or harassing the Applicant from the suit premises. The eviction is based on accrued rent arrears to which the Applicant does not deny owing nor has it provided evidence of consistent rent payment to disprove being in arrears.

24. It is the principal obligation of a tenant to pay rent and corollary the landlord is entitled to rent from the occupation of its premises (See Samuel Kipkorir Ngeno & another v Local authorities Pension Trust (Registered Trustees) and another (2013) eKLR). The failure of a tenant to pay rent may grant the Landlord the option to resort to available remedies to terminate the tenancy. It is noteworthy that such termination must be carried out as per the provisions of section 4(2) of the Act which provides that:-“A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.”

25. The Applicant has made claims of unlawful attachment of goods by the auctioneer instructed by the Respondent. While the Respondent has indicated significant arrears, the Tribunal finds that there is insufficient evidence to justify the attachment of the Applicant's goods without following due process. The Tribunal emphasizes that no auction or attachment should occur without proper notice and adherence to legal procedures.

26. The Applicant has sought an order directing the Respondent to accept Kshs. 324,000/= for six months of rent. The Tribunal notes that there are disputed arrears, but it recognizes the Applicant’s willingness to pay and resolve the issue. Given that the Respondent has refused to accept the rent, this appears one of the rare cases where the Tribunal would have found it appropriate to allow the Applicant to deposit the rent with the Tribunal at the interim during the pendency of the suit to avoid the inevitability of the arrears accumulating to astronomical levels vis-à-vis the monthly rent due. We are however already past that stage and what is left is to ensure that the Tenant fulfils his main obligation to the Landlord, the payment of rent.

27. In that regard, I therefore proceed to make the following orders: -

E. Ordersi.The Application dated 26th July 2024 succeeds in the following terms: -ii.The Landlord, his agents, servants, or anyone claiming through him, are hereby restrained from evicting or harassing or denying the Tenant the quiet enjoyment of the suit premises located at Plot L.R No. Embu Municipality 112/114, Shop No. 1, Embu Town.iii.The Respondent is hereby restrained from instructing any auctioneer or taking any further steps to attach the Applicant's goods/items unless the proper legal procedure is followed.iv.The Landlord is directed to provide the Tenant with bank account details into which the Tenant shall henceforth be making deposits into in settlement of monthly rent within 7 days.v.The Tenant is directed to pay the outstanding arrears of Kshs. 324,000/= as at 26th July 2024 together with any accrued arrears no later than 31st March 2025 failing which the Landlord shall be at liberty to distress without any further reference to this Tribunal.vi.The OCS Embu Police Station to assist in compliance of these orders.vii.Costs are awarded to the Tenant assessed at Kshs. 20,000/= deductible from monthly rent.viii.This Ruling settles the Complaint dated 26th July 2024. ix.File is marked as closed.

HON P. KITUR - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 12TH DAY OF MARCH 2025 IN THE PRESENCE OF KANYI HOLDING BRIEF FOR KINYUA FOR THE LANDLORD AND IN THE ABSENCE OF THE TENANT.