Mohamed Mohamed Moalin t/a Gaab Transporter Limited v Sally Oyera Mohamed & Igare Auctioneers [2021] KEBPRT 397 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 88  OF 2021  (NAIROBI)

MOHAMED MOHAMED MOALIN T/A

GAAB TRANSPORTER LIMITED......................................TENANT/APPLICANT

VERSUS

SALLY OYERA MOHAMED.............................LANDLORD/1ST RESPONDENT

IGARE AUCTIONEERS.....................................LANDLORD/2ND RESPONDENT

RULING

1.  Before me is a motion dated 7th April 2021 in which the Tenant is seeking for a prohibitory order restraining the 1st and 2nd Respondents from carrying away his proclaimed goods and/or in any other manner whatsoever interfering with the Tenant’s peaceful occupation of the demised premises.

2. The motion is supported by the Tenant’s affidavit of even date in which he deposes that his tools of trade were proclaimed by the 2nd Respondent on 29th March 2021.

3. The Tenant claims that the rent arrears sought to be recovered is exaggerated and/or non existent as he has paid all the rent due to the 1st Respondent.

4. The Tenant claims that if there is any rent arrears due, the same has been occasioned by the prevailing economic challenges occasioned by covid-19 pandemic.

5.  It is the Tenant’s case that the Landlord has failed to furnish him with an account of the rent arrears and receipts of rent paid.

6.  He therefore claims that if the proclaimed goods are removed from the business premises, his business will be totally paralysed.

7. The Tenant contends that the Respondents’ actions are meant to coerce him into vacating the premises and is mischievous, illegal, unlawful and void.

8.  The Tenant was granted ex-parte orders in terms of prayer 2 pending the hearing and determination of the application.

9. The 1st Respondent filed a replying affidavit sworn on 29th April 2021 annexing a tenancy agreement marked “SOM 1” for a period of 2 years.

10.   It is the 1st Respondent’s case that since August 2019, the Tenant has not been paying full rent and was in arrears of Kshs.1,331,840. 00 as at the date of swearing the affidavit as demonstrated by annexture “SOM 2”.

11.  Although the Tenant deposits rent into the Landlord’s  account in Equity Bank, he has failed to demonstrate payment of the amount of arrears claimed by the Landlord.

12.  The Landlord contends that in view of the foregoing, the distress for rent is lawful and the correct rent arrears is Kshs.1,331,840. 00 and not Kshs.364,600. 00 indicated in the proclamation.

13.   The Landlord denies that the proclaimed goods are tools of trade and the allegation was a mere excuse.

14.   The rental income was the Landlord’s only source of income.

15.   It is the Respondent’s case that the Tenant has failed to establish the requirement for injunction and that the right to levy distress is statutory under the Distress for Rent Act, Cap. 293, Laws of Kenya.

16.  The 1st Respondent in a further replying affidavit sworn on 6th May 2021 avers that the tenant reduced the rent by Kshs.400,000/- after filing the instant proceedings thereby leaving the initial amount claimed at Kshs.931,840/-.

17.   The 1st Respondent contends that in absence of evidence of rent payment by the Tenant, his allegation of not being indebted is hollow.

18.   Directions were given to dispose of the application by way of written submissions but only the Tenant filed the same.

19.  In his submissions, the Tenant argues that the Landlord has been demanding different amounts at different times and has failed to supply him with a rent book contrary to section 3(3) of Cap. 301 Laws of Kenya.

20.  The Tenant submits that the proclaimed trucks and/or vehicles are used to conduct his transport business and are immune against distress under section 16(1) of Cap. 293 Laws of Kenya.

21.  Having considered the pleadings and submissions filed by both parties herein, I am of the view that the only issue for determination is whether or not the Tenant/Applicant is entitled to the orders sought.

22.   These proceedings were prompted by the proclamation dated 29th March 2021 made by the 2nd Respondent against the Tenant.

23.  On 15th March 2021, the Tenant’s advocate wrote to the 1st Respondent’s advocate denying any rent arrears in response to the said letter, the Respondents’ advocate requested the Tenant’s advocate for evidence of rent payments for the period in question.  I have not seen any response by the Tenant to the challenge.

24.          I have once more carefully considered the pleadings filed by both parties as well as the Tenant’s submissions and find that the only issue for determination is whether the application ought to be granted or not.

25.   The principles upon which a temporary injunction may be granted were well settled by the case of GIELLA – VS- CASSMAN BROWN & CO. LTD (1973) EA 358  which need not be re-emphasized.

26.   In this case, the dispute is on whether the Applicant/Tenant has paid rent up to date or not. The Landlord maintains that the Tenant was in arrears of Kshs.1,331,845. 00 and only paid Kshs. 400,000/- after instituting these proceedings.

27.   A statement of rent account marked “SOM 2” has been annexed by the Landlord showing how the figure is arrived at.

28.   On the other hand, the Tenant has failed to tender evidence of payment of the amount claimed by the Landlord although it is not in dispute that all rent payments are made through the latter’s Equity Bank Account.  In such a scenario the incidence of proof shifted to the Tenant who alleges payment under section 108 of the Evidence Act.

29. Under section 107(1) of the Evidence Act, Cap 80 Laws of Kenya, “whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

30.  In the present case, the Tenant has failed to prove that he is not indebted to the Landlord and as such has not made out a prima facie case with a probability of success.

31.  In the case of SAMUEL KIPKORI NGENO & ANOTHER – VS- LOCAL AUTHORITIES PENSION TRUST 9REGISTERED TRUSTEES) & ANOTHER (2013) eKLR, the superior court while considering an application for injunction brought by a tenant who had failed to pay rent had the following to say at paragraphs 9 & 12.

“9. A tenant’s first and main obligation is to pay rent as and when it becomes due for the Landlord has the right to an income from his investment.  Why would a tenant allow himself into such huge arrears of rent”.

“12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion.  He who comes to equity must come with clean hands.  A tenant who is in huge arrears of rent is underserving of the court’s discretion.  The court cannot be the refuge of a tenant who fails to meet his principle obligation of paying rent as and when it becomes  due”.

32.   Equally in the present case, the Tenant rushed to court when he knew that he was indebted to the Landlord and despite being challenged to give his own version of the rent account and produce evidence of payment of the rent amount claimed, he failed to do so.

33.   In the premises, I find and hold that the Tenant/Applicant has failed to meet the test laid down in the GIELLA case (Supra) and as such the application for injunction is dismissed with costs to the Respondent/Landlord.

34.  Notwithstanding the said dismissal and in line with the principles enunciated in the case of ERINFORD PROPERTIES LTD –VS- CHESIRE COUNTY COUNCIL R (1974)  ALL ER 448  which I adopt with necessary modifications, I shall extend the interim orders earlier given herein for a period of SIXTY (60) days hereof to enable the Tenant to clear the amount in arrears or enter into an acceptable arrangement with the Landlord on how to do so failing which the injunction orders shall stand discharged after expiry of the said period.

DISPOSITION

35.   In conclusion therefore, I make the following orders:-

(a) The application dated 7th April 2021 is hereby dismissed with costs to the Respondent/Landlord.

(b) Notwithstanding the dismissal, the interim orders given on 9th April 2021 are extended for a limited period of sixty (60) days only to enable the Tenant/Applicant to clear the amount in arrears or enter into an acceptable arrangement with the Landlord on how to do so failing which the injunction orders shall stand discharged on expiry of the said period.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PRESEMISES RENT TRIBUNAL

In the presence of:

Mr. Mutisya for the Landlady

Mr. Abdi for the Applicant/Tenant