Mitu Mwongela v Philip Samanta [2021] KEBPRT 95 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E264  OF 2021  (NAIROBI)

MITU MWONGELA..........TENANT/APPLICANT

VERSUS

PHILIP SAMANTA...LANDLORD/RESPONDENT

RULING

1. By a motion dated 10th June 2021, the Applicant/Tenant is seeking for a permanent order of injunction restraining the landlord from interfering with his business and quiet occupation and lawful enjoyment of the premises situate on plot no. 477/BLI/Ngong until the hearing and determination of the Reference.

2. Prayers 2 and 4 were granted at the ex-parte stage and do not therefore fall for determination.

3. The application is supported by the Applicant’s affidavit sworn on 30th June 2021 and the grounds on the face of the application.

4. It is the tenant’s case that the landlord issued him with a notice to vacate the premises dated 27th  May 2021 expressed to take effect on 1st August 2021 marked ‘MM-01’.

5. Faced with imminent eviction, the tenant filed the instant proceedings stating that he protested to the notice by a letter dated 18th June 2021 marked “MM-02”.

6. The grounds upon which the termination notice is founded is that the landlord intends to carry out major renovations which the tenant deposes have never been brought to his attention and/or discussed with a view to the same being done while he was still in occupation.

7. According to the tenant, the grounds of termination are based on bad faith as the landlord owns other shops in the same building whose tenants have not been served with similar termination notices and the notice issued to him was therefore unjust.

9. The tenant’s shop is in the same condition as the others and was in a perfect condition warranting no renovations at all.  As such the landlord’s actions are malicious as the cited renovations are a scape goat to evict the tenant.

9. According to the tenant, the landlord wants to give the suit premises to someone else despite having faithfully paid his rent on time and having no arrears.

10. The tenant deposes that he had stocked the shop fully and the actions of intended eviction will highly prejudice and inconvenience him not to mention that it would occasion irreparable loss and damage.

11. According to the tenant, the threat of eviction is illegal and contrary to Cap. 301, Laws of Kenya and it was in the interest of Justice to allow the application.

12. The landlord filed a notice of preliminary objection dated 30th August 2021 stating that the jurisdiction of this Tribunal has not been properly invoked as envisaged by Cap. 301 Laws of Kenya since the applicant did not comply with Section 6(1) of the Act.

13. The landlord also filed a replying affidavit sworn on 30th August 2021 stating that the notice of motion is incompetent, frivolous, scandalous and an unmitigated abuse of the Tribunal process since it was not premised on a suit contrary to Section 12(1) of Cap. 301 Laws of Kenya.

14. The landlord issued notice to terminate tenancy dated 27th May 2021 expressed to take effect on 1st August 2021 for reasons that he intended to carry out renovations which cannot be done while the premises were in the tenant’s occupation in terms of Cap. 301, section 4(2).  No proper reference has been filed under section 6(1) of the said Act according to the landlord.

15. The landlord deposes that he intends to repair the depilated floor slab, walls and general renovation to the premises to make it tenantable owing to the fact that he has been carrying out construction of another floor on top of the premises which has been going on.  The landlord has attached photographs marked ‘PS2’ showing the status of the suit premises.

16. According to the landlord, the tenant has been inconsistent in paying rent and he was in arrears of Kshs.38,000/- as at 30th June 2021 and Kshs.76,000/- as at 30th August 2021 as per annexture “PS3”.

17. The landlord therefore contends that this being a court of equity, anyone coming before it must come with clean hands.  The tenant was in breach of his obligations of paying rent.

18. The landlord deposes that he was servicing a bank loan to build the suit premises and the tenants failure to pay rent leads to his borrowing at unfavourable interest to prevent the bank from sending debt collectors to his premises.

19. The landlord contends that the only recourse is for the tenant to vacate as he intends to develop the premises which will involve demolition of some arreas which cannot be done with the tenant in occupation.

20. The application was directed to be disposed of by way of written submissions but only the landlord’s counsel complied.  I shall consider the said submissions hereinafter.

21. Going by the above pleadings, the issues for determination in this matter are:-

a. Whether the tenant is entitled to the orders sought.

b. Who is liable to pay costs of the application?

22. The principles upon which an order of interim injunction is considered were long settled in the Locus Classicus Case ofGiella – vs- Cassman Brown & Co. Ltd (1973) EA 358 as follows:-

“(iv). An applicant must show a prima facie case with a probability of success

(v) An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.

(vi) When the court is in doubt, it will decide the application on the balance of convenience.

23. In the case of Mrao Ltd – vs- First American Bank of Kenya Ltd and 2 others(2005) eKLR cited by counsel for the landlord, it was held as follows:-

“a prima facie case in a civil application includes but is not confined toa “genuine and arguable case”. It is a case which on the material presented to the court, a tribunal properly directed 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”.

24. The tenant came before this Tribunal fearing that he was in danger of imminent eviction pursuant to a termination notice served upon him by the landlord which was expressed to take effect on 1st August 2021.  His application for injunction is therefore in the nature of “quia timet injunction”.

25. A “quia timet injunction” refer to a type of injunction in English law obtained where a wrong is anticipated.  It means that the applicant can approach the court before  the wrong occurs based on fear that an immediate threat existed.

26. In the instant case, the tenant was served with notice to vacate the suit premises by 1st August 2021 and feared that in the event that no injunction was issued, he risked eviction therefrom.  In my view this fear is genuine and well founded.

27. The short title to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya is in the following terms.

“An Act of parliament to make provision with respect to certain premises for the protection of tenants of such premises from evictionor from exploitation and for matters connected therewith and incidental thereto” (emphasis added).

28. In the premises, when a tenant is faced with threats of eviction, this Tribunal is legally bound to protect him in the pendency of the proceedings relating to such notice.

29. The landlord submits that the tenant has not properly invoked the Tribunal’s jurisdiction under section 6(1) of Cap. 301, Laws of Kenya.  I have however noted that the tenant filed “form C” under the Act which is the reference envisaged under the said section.  The matter is therefore properly before the Tribunal.

30. As regards the second consideration under the Giella Case (Supra), I am satisfied that the tenant would suffer an illegality if he was evicted from the suit premises in the pendency of his reference.  Allowing an illegal eviction in the pendency of such reference would amount to an abdication of this Tribunal’s duty to protect tenants from eviction.  I am cognizant that the tenant is equally under a legal obligation to pay rent to the landlord as and when the same falls due and payable.

31. Even if I was in doubt about any of the above two principles, I would still hold that the balance of convenience is in favour  of maintaining the status quo in the pendency of the reference.

32. In the premises, the following orders commend to me in this matter:-

a. The tenant’s application dated 10/6/2021 is allowed and a temporary injunction is hereby granted to restrain the landlord, his servants, employees and/or agents from evicting the tenant or in any way threatening, harassing, intimidating or in any other manner interfering with the tenant’s quiet occupation and lawful enjoyment of the suit premises situate on plot no. 477/BL1/Ngong pending the hearing and determination of the reference.

b. The tenant shall pay in full all the rent owing to the landlord in respect of the suit premises within the next Forty five (45) days hereof failing which the landlord shall be entitled to levy distress against him.

c. Costs of the application shall abide the outcome of the main reference.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 19TH DAY OF NOVEMBER, 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of :

Kamau for the Landlord

No appearance for the Tenant