Ndungu Kangethe Kinyanjui v Harrison Omondi Oyugi [2021] KEBPRT 446 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 866 OF 2020 (NAIROBI)

NDUNGU KANGETHE KINYANJUI....................APPLICANT/LANDLORD

VERSUS

HARRISON OMONDI OYUGI.................................RESPONDENT/TENANT

RULING

1. By a notice of motion dated 28th October, 2020, the Tenant moved this court seeking for orders of injunction to restrain the Landlord from terminating his tenancy with effect from 1st November 2020.

2. The Tenant further sought for restraining orders against the Landlord from removing the stock and properties until the application was heard and determined. He finally sought for a restraining order against the Landlord from interfering with the Applicant’s business premises.

3. The application is supported by the Applicant’s affidavit sworn on 28th October, 2020 and the grounds set out on the face of the application.

4. The genesis of the instant dispute is a notice of termination marked H002 annexed to the supporting affidavit seeking to terminate the Applicant’s tenancy with effect from 1st November, 2020 on grounds that the Landlord intend to occupy the premises for a period of not less than one (1) year for purposes of running his own personal business.

5. The Tenant responded to the notice to terminate tenancy by his letter of 11th August, 2020 and his advocates letter of 26th October, 2020 in which he pleaded against the termination saying that he had invested heavily in the premises.

6. The copy of tenancy agreement attached to the supporting affidavit is not legible and I am therefore unable to decipher the contents.

7. On the other hand, the Landlord filed a notice of motion dated 3rd November, 2020 seeking that the Tenant be compelled to give vacant possession of the suit premises pursuant to the notice of termination of tenancy issued on 5th August, 2020.

8. The said application is supported by the Landlord’s affidavit sworn on 3rd November 2020 and the grounds on the face of the application.

9. The gist of the Landlord’s application is that prior to Covid-19 pandemic he was running a business which was highly affected when the pandemic hit the country leading to closure thereof.

10. The Landlord further contends that his unnamed son who was employed as a pilot was immediately terminated resulting in loss of income and inability to provide for his family.

11. The Landlord decided to start a business with his son and issued the Tenant herein with notice to terminate tenancy.

12. The Landlord deposes that he has a huge bank loan that cannot be serviced by the rental income as well as other financial obligations which necessitates that he runs alternative business to meet his financial obligations.

13. The Landlord filed a replying affidavit on 22nd January, 2021 in which he opposes the Tenant’s application dated 28th October, 2020 wherein he repeats the contents of the supporting affidavit sworn in respect of his application dated 3/11/2020.

14. The application dated 28th October, 2020 was canvassed by way of written submissions in terms of directions given on 2nd March, 2021.

15. I have read both counsels’ submissions and the main issue for determination is whether the Tenant has established the principles for the grant of an injunction espoused in the celebrated case of GIELLA VS- CASSMAN BROWN & SONS LTD (1973) EA 358.

15. 1t is the Applicant’s case that after entering into tenancy agreement with the Landlord, he incurred heavy costs in erecting fixtures and upgraded it to ostentatious status to entice “classy customers”. He did this on the understanding that he could occupy the premises without any interruption or interference from the Landlord.

16. He installed a CCTV system within the premises to boost security within the building and had been promptly paying rent to the Landlord.

17. The Tenant contends that given the investment made in the premises, he should have been given sufficient reasons why the Landlord would repossess the same.

18. On the other hand, the Landlord contends that he wishes to terminate the tenancy to carry on business with his son in the same premises for a period of one (1) year.

19. The nature of the business intended to be carried out in the premises is not indicated in any of the affidavits sworn by the Landlord, neither is the name of the son who is said to have lost employment given.

20. The alleged loan with Equity Bank is not supported with empirical evidence neither has the intention to start the business been demonstrated.

21. I hold that loss of a business enterprise by the Tenant would amount to irreparable loss and damage considering that the same has been in existence since July, 2016 to date and it is not known how longer it is bound to continue existing.

22. I further hold that the Tenant has demonstrated that he has a prima facie case with a probability of success and that the balance of convenience is in favour of sustaining the status quo in the pendency of the main Reference.

23. I shall therefore allow the application in terms of prayer (d) of the same with costs in the cause.

24. For avoidance of doubt, the Tenant shall continue paying the reserved rent as and when the same falls due and payable and shall meet all other obligations in respect of the demised premises as before.

25. The Reference shall be fixed for hearing on a priority basis.

DATED, DELIVERED AND SIGNED THIS 18TH DAY OF JUNE 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Maina for the Landlord

Miss Wekesa for Dr. Khaminwa for the Tenant

Further order: Hearing of the main Reference on 10th August, 2021.

Parties to file and exchange witnesses statements and documents intended to be relied upon during the hearing within the next 30 days.

Hearing to be physical at 12. 30p.m.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

18/6/2021