Mwangi Gitau t/a Bar & Restaurant v Gakau Kiboci [2022] KEBPRT 248 (KLR)

Mwangi Gitau t/a Bar & Restaurant v Gakau Kiboci (Tribunal Case E088 of 2021) [2022] KEBPRT 248 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 248 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E088 of 2021

Gakuhi Chege, Vice Chair

May 4, 2022

Between

Mwangi Gitau t/a Tangaza Bar & Restaurant

Applicant

and

Gakau Kiboci Teresia Wambui

Respondent

Ruling

1. Before me is a motion dated November 2, 2021 in which the tenant in material part seeks for declaration that the tenancy is controlled together with restraining orders against the landlord from distressing for rent and evicting the tenant pending and determination of the reference.

2. The tenant further seeks for an order of accounting between parties before payment of demanded or future rent. The tenant sought for 21 days to provide the agreement for renovating the suit premises together with invoices, receipts ad payments made while renovating the business premises.

3. The application is supported by the affidavit of the tenant sworn on November 3, 2021 and the grounds on the face thereof. The tenant deposes that he entered into a written agreement with the respondent’s wife one Teresia Wambui in February 2015 to renovate the suit premises and recoup the costs from rent payable until the costs were fully recouped. The agreed rent per month was kshs 38,000/-.

4. According to the tenant, the costs of renovation would be recovered in a span of 4 years if a sale agreement for the premises was not consummated within that period upon the respondent obtaining a title deed to the premises. Rent was not payable during the period of renovation which took 9 months.

5. The cost of renovation according to the tenant would be paid by the landlord if the tenancy was terminated before the tenant recouped the costs. The tenancy was to last for ten (10) years.

6. It is deposed that costs of repairs was kshs 4,500,000/- in respect of the premises which had been destroyed by fire. The tenant deposes that he also used kshs 350,000/- to pay off one Johnson Njogu to vacate the premises for renovation.

7. The 1st respondent took over the management of the premises in December 2019. It is the tenant’s case that he knew of the renovation agreement.

8. Sometimes on October 22, 2021, the landlord instructed Nimaj Auctioneers to distress for non-existent rent as per annexure ‘JGM1: According to the tenant, the proclamation should have been sanctioned by this tribunal.

9. The tenant deposes that he would suffer irreparable loss and damage if the threatened distress took place.

10. On November 5, 2021, interim orders were granted and the applicant was given 21 days to provide the agreement for renovating the suit premises together with invoices and receipts for the renovations caused on the suit premises. I note that by the time of writing this ruling, the said order had not been complied with.

11. The application is opposed through the replying affidavit of the landlord sworn on December 16, 2021 wherein it is denied that any agreement for renovation of the premises existed. It is however admitted that the monthly rent was kshs 38,000/-.

12. By October 20, 2021, the rent arrears was kshs 1,009,500/- as per annexure ‘GK-2’ which the tenant has neglected, ignored and/or refused to pay.

13. According to the landlord, the right to levy distress is a legal right which does not require a court order to be enforced. The last payment of rent by the tenant according to the landlord was in July 2020 when he paid kshs 100,000/- as per annexure GK-5(a) & (b) and as such this reference is an abuse of court process.

14. The matter was ordered to proceed by way of written submissions but only the applicant complied. I shall consider the submissions together with the issues for determination.

15. The issues for determination herein are:-a.Whether the tenant has established a basis for granting reliefs sought herein.b.Whether the distress for rent levied against the tenant is legal.

16. The tenant’s application for injunction is premised upon an alleged renovation agreement entered between the tenant and one Teresia Wambui which he undertook to produce in 21 days but never did. The tenant’s counsel in his submissions claims that the 2nd respondent was supposed to shed light on the renovation agreement.

17. Section 107 (1) of the Evidence Act, cap 80 Laws of Kenya provides as follows:-“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 exists”.

18. Section 108 of the same Act provides as follows:-“The burden of proof in a suit or proceedings lies on that who would fail if no evidence at all were given on either side”.

19. The tenant had the legal duty to exhibit and prove that there existed an agreement to renovate the suit premises and recoup the costs from rent payments. Having failed to do so despite seeking 21 days in his application, it is clear that he has failed to establish a prima facie case with a probability of success in line with the principles set at in the case of Giella vs Cassman Brown & Co Ltd (1973) EA 358.

20. As regards whether the distress for rent levied against the tenant is legal it is important to consider the provisions of section 3(i) of the Distress for Rent Act cap 293, Laws of Kenya which provides as follows:-“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of the rent or rent service as is given by the common law of England in a similar case”.

21. Although the tenant contends that such distress could not be levied without permission of the tribunal, there is no such requirement under the Distress for Rent Act, cap 293 Laws of Kenya. I am fortified in this regard by the decision in the case of John Nthumbi Kamwithi vs Asha Akumu Juma(2018) eKLR at paragraph 34 where the superior court held that there was no provision to the effect that such permission be sought under the Distress for Rent Act.

22. In the case of Peter Nthenge vs Daniel Itumo & Another Nairobi HCCC no 1242 of 1974, it was held as follows:-“The right of landlord to distrain for arrears of rent arise at common law and need not be expressly reserved. It enables the landlord to serve the payment of rent by seixing goods and chattels found upon the premises in respect of which the rent or obligations are due. Formerly, the right to distress was a right of some importance to the landlord and was often exercised but it has now largely fallen into disuse”.

23. At paragraph 35 of the judgment in the Peter Nthenge vs Daniel Itumo & another case (supra), the court went on to hold as follows:-“I find that the appellant had no obligation to seek permission from the tribunal to distress. The fact that the tenancy is controlled does not mean that the landlord applies to the tribunal to levy distress. Distress is a right the landlord is entitled to for recovery of rent. If the tenant chooses he/she could file a reference to the tribunal for orders in objection of the distress”.

24. As regards costs, they are in the discretion of the court but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the Respondents costs.

25. The reference herein was not filed pursuant to any notice to terminate or alter terms of tenancy and the filing of form B under the schedule to cap 301, Laws of Kenya was not proper. The correct form would have been a complaint in form C (rule 5) under the said schedule.

26. The reference filed by the tenant states that he wishes “to oppose notice of eviction and the proclamation notice dated October 20, 2021 of tenancy…….l.”. no notice of eviction has been tendered and the proclamation notice has been addressed in this ruling. There is therefore nothing to escalate full hearing.

27. Flowing from the above, the final orders that commend to me are:-(i)The tenants application dated November 2, 2021 and the reference of even date is hereby dismissed with costs.(ii)The interim injunctive orders given on November 5, 2021 are hereby discharged and/or set aside.(iii)The landlord is at liberty to use lawful means to recover any outstanding rent against the tenant.(iv)The costs of the respondents is assessed at kshs 20,000/- all inclusive.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MAY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling read in the absence of the parties.