Nyaata v Nyaoga t/a Monte Carlo Lounge [2025] KEBPRT 187 (KLR)

Nyaata v Nyaoga t/a Monte Carlo Lounge (Tribunal Case E057 of 2024) [2025] KEBPRT 187 (KLR) (Civ) (26 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 187 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E057 of 2024

P Kitur, Member

February 26, 2025

Between

John Peter Nyaata

Applicant

and

James Omariba Nyaoga t/a Monte Carlo Lounge

Respondent

Ruling

A. Parties 1. The Applicant is the registered owner of the property located at Nyakoe Market Parcel number West/Kitutu/Bogeka/2211 within Kisii County (the suit premises).

2. The firm of Wesonga G.O & Company Advocates represents the Applicant/Landlord.

3. The Respondent conducts a bar and restaurant business on the suit premises as a tenant of the Landlord.

4. The firm of Ombati Ombati & Company Advocates represents the Respondent/Tenant.

B. The Dispute Background 5. According to the Tenant, the parties entered into a tenancy agreement through a lease dated 6th October 2020, duly executed by both parties. The tenant agreed to pay a monthly rent of Kshs. 70,000/- for the occupation of the suit premises.

6. In the course of the tenancy, the Landlord issued written demands to the Tenant regarding rent arrears. The Landlord subsequently filed a reference with this tribunal, raising a complaint against the Tenant for refusing to pay rent and allegedly intending to sublet or sell the suit premises to a third party.

7. On 7th October 2024, the Landlord filed an application under a certificate of urgency seeking a temporary injunction to restrain the Tenant from removing items from the suit premises, subletting, or disposing of the suit property to a third party. The Landlord also sought an order compelling the Tenant to pay the outstanding rent arrears, failing which the Landlord be permitted to levy distress for recovery of the arrears. Additionally, the Landlord requested an order for the Tenant to vacate the suit premises and for costs of the application.

8. The application was based on the grounds that the Tenant had failed to pay rent as agreed and was in arrears amounting to Kshs. 1,390,000/-.

9. The Tenant responded with a replying affidavit dated 5th November 2024, acknowledging the tenancy relationship but denying any rent arrears. The Tenant claimed that the Landlord owed him money for renovations that were to be cost-shared, but the Landlord failed to honor the agreement. The Tenant averred that both parties had agreed that the rent paid by the Tenant would offset the debt owed by the Landlord. Consequently, the Tenant argued that the Landlord had breached the lease agreement and was therefore undeserving of the orders sought in the application.

10. Both parties agreed to dispose of the application by way of written submissions, which were duly filed.

11. In view of the above, this tribunal is of the opinion that following issues arise for determination:-

C. List Of Issues for Determination Whether the Landlord is entitled to the reliefs sought. D. Analysis And Findings 12. The primary dispute involves the alleged rent arrears of Kshs. 1,390,000/-. The Tenant admitted to the existence of the tenancy relationship but disputed owing any rent arrears. The Landlord provided written demands for the arrears, which the Tenant allegedly failed to satisfy. The Tenant however contends that there were renovations agreed upon between the parties, with costs to be shared, and that the Landlord failed to honor this agreement. Consequently, the Tenant argues that the rent payments were to offset the renovation costs.

13. There is no evidence presented by either party to substantiate the alleged agreement regarding cost sharing of renovations. The existence of a lease agreement notwithstanding, a tenant is obligated to pay rent in exchange for the occupation, but the Tenant's assertion of an agreement to offset rent payments against renovation costs lacks supporting documentary evidence.

14. It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 and 108 of the Evidence Act provide 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 exist.

15. In this case, the Tenant has failed to produce sufficient evidence to support the alleged agreement to offset renovation costs against the rent. Therefore, the tribunal finds that there was no mutual agreement between the parties to offset the renovation costs against the rent. The absence of which means that the tenant was in arrears for failing to make rent payments.

16. Given the Tenant's failure to pay the agreed rent and the lack of evidence supporting the alleged offset agreement, the Landlord's application for a temporary injunction and eviction is warranted.

17. Further, as to the injunctive orders sought by the Landlord this Court is guided by the principles in Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the Court set out the principles for interlocutory injunctions as follows:“The conditions for the grant of an interlocutory are now, I think well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury in which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

18. On whether the tenant shall suffer irreparable harm which cannot be adequately compensated by way of damages, the tribunal draws guidance from the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR wherein it was stated:“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”

19. Having considered the application for injunctive orders, it is evident that the Applicant is likely to suffer irreparable harm that cannot be adequately compensated by way of damages if the suit property is disposed of by the Respondent. The suit property beimg a place where the Tenant carries on business holds unique and strategic value for the Applicant, and the disposal of the assets therein or their transfer would result in intangible losses that are irreplaceable. Additionally, the legal and procedural complications that may arise from reclaiming the property or obtaining just compensation further emphasize the inadequacy of damages as a remedy.

20. Given these considerations, the balance of convenience lies in favor of granting the injunctive orders sought by the Applicant. The Applicant has demonstrated a prima facie case of rent arrears and the likelihood of irreparable harm if the property is disposed of. Therefore, the tribunal finds it just and equitable to grant the temporary injunction restraining the Respondent from disposing of the suit property.

21. Given the Tenant's failure to provide evidence of an agreement to offset the rent with renovation costs, the Landlord is entitled to recover the rent arrears. Therefore, an order compelling the Tenant to pay the arrears or permitting the Landlord to levy distress is warranted.

22. The Landlord requests that the Tenant be compelled to pay the rent arrears or be allowed to levy distress for their recovery. Considering the finding that the Tenant is in arrears, the tribunal finds the Landlord's request justified.

23. Under the Distress for Rent Act (Cap 293), a landlord is entitled to levy distress for rent arrears.

24. From the foregoing, the Tribunal makes the following orders:-

E. Ordersi.The Application dated 7th October 2024 is allowed in the following terms:ii.An injunction is hereby issued restraining the Tenant/ Respondent from removing any items from the business premises, subletting, selling off or disposing of the business to a third party.iii.The tenant shall clear the arrears of Kshs. 1,390,000/= as at 7th October 2024 in addition to any rent and incidental costs accrued to date no later than 4th March 2025. iv.In default, the Landlord is at liberty to proceed and distress for the rent without any further reference to this Tribunal.v.The Tenant shall additionally hand over vacant possession of the premises to the Landlord on or before 31st March 2025 failure to which the Landlord shall be at liberty to break in and enter with the assistance of OCS Mosocho Police Station or any other Police station close by.vi.This Ruling settles the Complaint dated 7th October 2024. vii.Costs are awarded to the Landlord assessed at Kshs. 40,000/=.viii.File is marked as closed.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. Kitur this 26th day of February 2025 in the presence of Wesonga for the Landlord and in the absence of the Tenant.