Pepercrest Company Limited v Peter Macharia Wamutte & Rose Violet Kerigo Murage Trading As Rack Reality [2022] KEBPRT 59 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E024  OF 2021 (NAKURU)

PEPERCREST COMPANY LIMITED..............................................TENANT/APPLICANT

VERSUS

PETER MACHARIA WAMUTTE & ROSE VIOLET KERIGO MURAGE

Trading as RACK REALITY.....................................................LANDLORD/RESPONDENT

RULING

1. The tenant moved this Tribunal through a motion dated 17/9/2021 seeking in material part for an order restraining  the landlord from evicting, attempting to evict or interfering with its   business premises known as Patpow building Gilgil pending hearing and determination of the complaint.

2. The tenant also filed a reference of even date wherein it complains that the landlord orally threatened to evict it forcefully without following the law and had failed to carry out external renovations on the leaking roof together with painting.

3. The application is supported by the affidavit of Eric Kairu Wainaina a director of the tenant sworn on 17th September 2021 and the grounds on the face thereof.

4. The reserved monthly rent for the suit premises is Kshs.20,000/- which includes 2 main shops on the front and 4 rooms at the back.

5. The tenant deposes that he did repairs worth Kshs.160,000/- in respect of the entire suit premises which amount was to be deducted from future rent.  The tenant took possession on 1st September 2021 but one of the rooms had a tenant who took 6 months to vacate.

6. After taking possession, the tenant deposes that the roof was leaking as a result of which his goods got damaged.  The premises had a Kshs.1 million electricity bill with Kenya Power & Lighting Co. Ltd which the tenant helped to reconcile downwards.

7. Despite the foregoing financial investment, the tenant complains that the landlord had verbally threatened to forcefully evict it from the suit premises which was the tenant’s sole source of income.  The landlord had been taking prospective tenants to the premises with an intention of leasing it out.

8. Interim orders of injunction were given on 23/9/2021.

9. The application is opposed through a replying affidavit sworn on 4th October 2021 by the 2nd Respondent wherein the allegations made against the landlord are denied.  The amount of Kshs.160,000/- expended in repairs was recovered through rent and exhausted in the month of April 2021.

10. The Respondents contend that the tenant was in rent arrears of Kshs.87,500/- and had rushed to court upon demand being made to pay the same.

11. The issues for determination are:-

(a) Whether the tenant is entitled to the reliefs sought.

(b) Who is liable pay costs?

12. The principles upon which courts consider applications for injunction were settled in the locus classicus case of Giella – vs- Cassman Brown and Co. Ltd(1973) EA 358 to wit:-

(i) An applicant must show a prima 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.

13. In this matter, the tenant’s application is premised upon alleged threats of eviction by the landlord.  The threats are said to have been verbal.  No date has been disclosed on when the threats were communicated.  The tenant has not demonstrated that it has fulfilled all its obligations  including payment of rent up to date.

14. The landlord on the other hand deposes that the tenant was in arrears of Kshs.87,500/- as at October 2021.  The tenant did not swear any further affidavit to controvert the allegation of being indebted to the landlord.

15. In the case of Kyangavo – vs- Kenya Commercial Bank Ltd & Another (2004) eKLR at page 13/14, it was held as follows:-

“Secondly, the injunction sought is an equitable remedy.  He that comes to equity must come with clean hands and must also do equity……….he who comes to equity must fulfill all or substantially all his outstanding obligations before insisting on his rights.  The plaintiff has not done that.  Consequently, he has not done equity”.

16. Similarly in the case of Samuel Kipkori Ngeno & Another – vs- local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR at paragraphs 9 and 12, the court had the following to say:-

“9. A tenant’s first and main obligation is to pay rent as and when it becomes due, for the landlord has the right to an income from his investment…….”

“12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion.  He who comes to equity must come with clean hands.  A tenant who is in huge arrears of rent is underserving of the court’s discretion.  The court cannot be the refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due”.

17. In the premises, I am not convinced that the tenant has brought itself within the principles of granting an order of injunction.

18. As the reference raises the same issues, I am entitled to consider the same by way of inquiry under section 12(4) of Cap. 301, Laws of Kenya and determine it without the necessity of conducting a viva voce hearing.

19. Flowing from the above analysis, the following final orders commend to me:-

(i) The tenant’s application dated 17/9/2021 and the reference of even date is dismissed with costs.

(ii) The interim orders given on 23/9/2021 are hereby discharged and/or vacated.

(iii) The Respondents are awarded costs of Kshs.20,000/- all inclusive.

(iv) The landlord is at liberty to use lawful means to recover the outstanding rent without further recourse to this Tribunal.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF FEBRAURY, 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Thuku for the Tenant

Landlord/Respondent present in person

Rose Kerigo- Co. Landlord present in person