Omar v Kangethe Enterprises Auctioneers & another [2022] KEBPRT 741 (KLR)

Omar v Kangethe Enterprises Auctioneers & another (Tribunal Case E359 of 2022) [2022] KEBPRT 741 (KLR) (Civ) (22 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 741 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E359 of 2022

Gakuhi Chege, Vice Chair

August 22, 2022

Between

Khalifa Kimani Omar

Applicant

and

Kangethe Enterprises Auctioneers

1st Respondent

Central Hotel Nyeri Ltd

2nd Respondent

Ruling

1. The tenant herein filed a complaint under section 12(4) of cap 301, Laws of Kenya to the effect that the landlord was unlawfully trying to cancel the lease and using auctioneers to intimidate him despite the fact that there were no arrears. The complaint is dated April 25, 2022.

2. He also filed a motion of even date seeking restraining orders against the landlord and the auctioneer from interfering with his business items and merchandise or his quiet possession of the premises. The application is supported by the applicant’s affidavit to which is attached the complaint.

3. The complaint was precipitated by the landlord’s instructions to the 1st respondent to levy distress for a sum of Kshs 2,684,800/- in rent arrears and Kshs 306,000/- in unpaid water bill pursuant to which the 1st respondent issued a proclamation dated April 21, 2022.

4. The tenant runs a hotel business in Nyeri Town known as Central Hotel which was leased to him in December 2019. The tenant states in the affidavit in support of the application that his rent account was up to date.

5. On the other hand, the landlord’s director one Lucy Wanjiku Kanyoygo swore a replying affidavit on May 23, 2022 in which she deposes that the hotel business was leased vide an agreement dated December 19, 2019 marked as annexure ‘LWK-1’ at a monthly rent of Kshs 200,000/- contrary to the tenant’s deposition that the same was leased to him at Kshs 60,000/- per month.

6. The landlord has annexed a deposit slip marked ‘LWK-2’ to show the initial rent payment of Kshs 200,000/- and deposes that the tenant was in huge rent arrears as per the demand letter marked ‘LWK03’.

7. The tenant filed a further affidavit sworn on May 28, 2022 in which he deposes that the monthly rent payable was renegotiated to Kshs 120,000/- on account of Covid-19 pandemic as evidenced by annexure ‘LWK-3’ above. He denies that there was a pending water bill of Kshs 455,961/-.

8. The tenant deposes without attaching any evidence that he undertook repairs worthKshs 2 million and had no rent arrears and the landlord desired to evict him before recouping his investment despite the lease agreement being for ten (10) years and request that rent be reviewed toKshs 60,000/- as per mutual agreement between the parties.

9. The landlord’s director has sworn a supplementary affidavit dated June 21, 2022 stating that the tenant was in arrears of over six (6) months based on monthly rent of Kshs 200,000/-. She denies that there was review of rent and maintains that as at April 7, 2022 when she instructed the 1st respondent, the amount in arrears was Kshs 2,684,800/- as per annexure marked ‘LWK4’. Annexure ‘LWK-5’ shows that the tenant was in arrears of water bills of Kshs 273,091 as per the statement of account from Nyeri Water and Sanitation Co Ltd.

10. The landlord denies having authorized renovations of the suit premises and had no knowledge of the same and the tenant should be ordered to vacate.

11. The application was ordered to be canvased by way of written submissions and both parties complied. I shall consider the submissions together with the issues for determination.

12. I am required to determine the following issues based on the foregoing pleadings:-a.Whether the applicant is entitled to reliefs sought in the application and complaint herein.b.Whether the landlord is entitled to distress for rent arrears claimed.c.Who is liable to pay costs?

13. The main issue for determination is whether the applicant has brought himself within the principles for granting an order of injunction espoused in the locus classicus case of Giella v Cassman Brown & Co Ltd (1973) EA 358 to wit:-i.An applicant must show aprima facie case with a probability of success.ii.An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.iii.When the court is in doubt, it will decide the application on the balance of convenience.

14. In the case of Mrao v First American Bank of Kenya Ltd & 2 others (2003)eKLR, the Court of Appeal at page 8/10 held as follows:-“So what is a prima facie case, I would say that in civil cases, it is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”.

15. The dispute herein relates to alleged non-payment of rent by the tenant and the intended distress for rent by the landlord in the sum of Kshs 2,684,800. 00 as at April 7, 2022 when the landlord issued instructions to the 1st respondentvideannexure ‘LWK-1’ attached to the supplementary affidavit sworn on June 21, 2022 by Lucy Wanjiku Kanyonyo.

16. The tenant contends that the monthly rent was mutually reduced to Kshs 60,000/- by the parties. This allegation has been disputed by the landlord who relies on the lease agreement to contend that it remains atKshs 200,000/-.

17. The duty of this court is to interprete contracts entered into by parties and not to make a new agreement for them. This is what was stated in the case of Jiwaji v Jiwaji (1968) EA 547 at page 550 and National Bank of Kenya Ltd v Pipeplastic Sarkolit (k) Ltd & Another (2001) eKLR.

18. I have looked at the lease agreement marked ‘LWK-1’ annexed to the replying affidavit of Lucy Wanjiku Kanyonyo on May 23, 2022 and it clearly states at clause 1(a) that the monthly rent is Kshs 200,000/- which is payable through the stated bank account of the landlord. The landlord annexes a statement of bank account as ‘LWK-2’. On the other hand, the tenant has not annexed any evidence of payment of rent. I therefore find that the rent payable for the suit premises isKshs 200,000/- per month for the first two (2) years which is expressed to increase by 10% every two (2) years. The lease agreement was to take effect on January 21, 2020.

19. Section 97 of the Evidence Act ,cap 80 Laws of Kenya clearly bars a party from adducing oral evidence to contradict or vary a written contract. No variation of lease agreement has been exhibited by the tenant.

20. Section 107(1) of the Evidence Act, cap 80 states 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”.

21. I have looked at all the materials presented before me by the tenant and I am not convinced that he has established the principles espoused in the case of Giella v Cassman Browm & Co Ltd.

22. Section 3(1) of the Distress for Rent Act cap 293, Laws of Kenya 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 that rent or rent service as is given by the common Law of England in similar case”.

23. I have looked at the instructions letter attached to the landlord’s supplementary affidavit as ‘LWK-1’ and I note that the same was issuedinter- alia under the Distress for Rent Act cap 293 and there being no evidence of payment of rent claimed therein from the tenant, I am convinced that the landlord had every right to levy distress against him.

24. I have noted that the tenant has through his submissions stated that the notice issued to him failed to meet the requirements of section 4 of cap 301, Laws of Kenya as it is not in the prescribed format. He relies on the case of Lall v Jeypee Investments Ltd (1972) EA 512 in support of the said contention.

25. It is imperative to note from the pleadings filed by the tenant that the issue of alleged notice has not been pleaded nor raised and what is before me is the question as to whether the landlord is entitled to recover rent arrears by way of distress for rent. A party is bound by his pleadings in line with the decision in the case of Kenya Commercial Bank Limited v Popatlal Madhavj & Brothers Limited (2019) eKLR, Galaxy Paints Co Ltd v Falcon Guards Ltd (2000) EA 885.

26. The said principle was upheld by the Supreme Court of Kenya in the case ofRaila Amolo Odinga & Another v IEBC & 2 Others (2017)eKLR where the court expressed itself as follows:-“In the absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have the opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other. Therefore it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings……….”.

27. In line with the said decision, the validity of alleged notice which is not attached to the tenant’s affidavits herein does not arise for consideration in this matter whose foundation is the proclamation of attachment issued by the 1st respondent under instructions of the landlord. The issue of renovations can only arise during termination of the lease agreement.

28. I therefore find and hold that the landlord is entitled to levy distress for rent against the tenant for recovery of any rent due less a sum ofKshs.60,000/- paid via Mpesa on June 10, 2022 as per the Mpesa message attached to the tenant’s further affidavit.

29. I have looked at the application dated July 25, 2022 which was filed in the pendency of this ruling and the same raises the same issues considered herein and this ruling shall therefore apply to it and the complaint in line with section 12(4) of cap 301, Laws of Kenya which provides as follows:-“(4)In addition to any other powers specifically conferred on it by or under the Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and may make such order thereon as it deems fit”.

30. As regards costs, the same are in the tribunal’s discretion under section 12(1) (k) of cap 301, Laws of Kenya and otherwise ordered. I have no reason to deny the respondents costs of the complaint.

31. In conclusion therefore, the final orders which commend to me are:-i.The complaint herein together with the tenant’s applications dated April 25, 2022 and July 22, 2022 are hereby dismissed with costs.ii.The interim orders given herein on April 27, 2022 are hereby discharged/vacated.iii.The landlord is at liberty to recover any rent due and owing by the tenant in respect of the demised premises through lawful means including distress for rent.iv.The respondent’s costs of the case are assessed at Kshs 30,000/- all inclusive.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL.**In the presence of:Miss Njoroge for the LandlordKaranja for the Tenant