Mwadumbo & Company Advocates v Gimco Limited [2022] KEBPRT 198 (KLR)

Mwadumbo & Company Advocates v Gimco Limited (Tribunal Case E153 of 2022) [2022] KEBPRT 198 (KLR) (Civ) (12 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 198 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E153 of 2022

Gakuhi Chege, Vice Chair

July 12, 2022

Between

Mwadumbo & Company Advocates

Applicant

and

Gimco Limited

Respondent

Ruling

1. The tenant/applicant moved this Tribunal vide a reference dated February 15, 2022 and a motion of even date seeking for restraining orders against the Respondent from entering into, locking the suit premises, levying distress, evicting, harassing and/or in any other manner interfering with the applicant’s/tenant’s quiet possession of the suit premises located at KMA Cester Apartment Block D, Unit 0. 1 Ground floor, Upper Hill where it runs a law firm pending hearing and determination of the reference.

2. The application is supported by the affidavit of Salim Ali Mwadumbo, the Managing partner of the applicant sworn on February 14, 2022.

3. The relationship between the parties is founded upon a tenancy agreement entered between the Respondent and the applicant on 11th June 2020 by which the suit premises were let to the latter at a monthly rent of Kshs.70,000/- for a period of one (1) year renewable upon application with effect from July 1, 2020.

4. Sometimes on February 3, 2022, the respondent commissioned Garam Auctioneers to distress for rent arrears of Kshs.357,498/-. As a result, the Auctioneers issued a proclamation notice marked ‘SAM3’ as a result of which the tenant came to court for protection against the distress and possible eviction.

5. Among the documents annexed to the supporting are rent payment deposit slips and cheques issued in favour of the Respondent.

6. Interim orders were given in favour of the tenant and the same are still in place to date. A replying affidavit by one Simon Warui, a director of the respondent sworn on April 4, 2022 was filed in opposition to the application. The annexures to the affidavit are missing from the court record and I am therefore unable to know the contents thereof. The Respondent denies being the landlord of the applicant and deposes that the premises are owned by Kenya Medical Properties Limited which instructed auctioneers to levy distress. The respondent only manages the property.

7. I am required to determine whether the applicant is entitled to the injunction orders sought and further determine who is liable to pay costs of the application.

8. As observed above, the respondent’s replying affidavit is incomplete as the annexures referred to including the rent account statement are missing from the court record. I am therefore unable to determine if any rent was owing by the applicant at the time when instructions to levy distress were issued.

9. It is not in dispute that when the tenant came to court, it was facing imminent distress for rent and possible eviction on account of alleged rent arrears. This Tribunal upon certifying the matter urgent issued interim protection orders in favour of the tenant.

10. In the case ofAssanand v Pettitt (1978) eKLR, the superior court cited with approval the English case of Preston v Luck (1884) 27 Ch D at P 505 on the object of a temporary injunction as follows:-“to keep things in status quo, so that, if at that 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 the judgement ineffectual”.

11. In the instant case, if the applicant is not granted an injunction order, there is every possibility that the distress agent its properties will be carried on before the amount of rent in arrears is established by this Tribunal. I am therefore satisfied that the applicant has established the principles espoused in the case of Giella v Cassman Brown & Co Ltd & another(1973) EA 358.

12. From the arguments presented by the applicant in this matter there is need to do reconciliation of accounts to establish if any rent arrears are owing and if so how much. This cannot be done at this interlocutory stage. However, this does not mean in any way that the tenant is protected from paying rent and meeting other obligations under the tenancy contract.

13. In regard to the issue whether the respondent is properly sued in this matter as a landlord, I have noted that the tenancy agreement is signed by it on behalf of the landlord. All the rent payment documents exhibited by the tenant although some are not legible are made in favour of the respondent and as such, the respondent is properly sued by the applicant.

14. As the matter shall be escalated to reconciliation of accounts, I shall not make any order as to costs at this stage.

15. In the premises, the following orders commend to me in this matter:-i.A temporary injunction shall issue restraining the respondent by itself, servants, agents, employees and/or agents from locking the suit premises, levying distress, evicting, harassing or in any other manner interfering with the tenant’s quiet occupation and enjoyment of the suit premises being Unit 0-1, KMA Center, Apartment Block D, Ground Floor, Upperhill, Nairobi City pending reconciliation of the rent account and/or further orders of this Tribunal.ii.The tenant shall continue paying monthly rent as and when the same falls due and payable.iii.Both parties shall within Thirty (30) days hereof file and exchange statements of rent account accompanied with legible documentary proof of rent payment for purposes of reconciliation exercise.iv.Both parties shall also file and exchange their respective comprehensive witnesses statements in line with order 11 of the Civil Procedure Rules, 2010 within the same period.v.In the event of failure by the tenant to comply with order no. (iii) and (iv) above, the injunction order given herein shall automatically stand vacated.vi.Costs shall be in the cause.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Muthoni for the RespondentNo appearance for the TenantFurther order:Mention on 16/8/2022 to confirm compliance.Order to be extracted and served upon the TenantHON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL12TH JULY 2022