Peter Waititu Njau v Edward Kibe Hombe & 2 others [2021] KEBPRT 150 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 11  OF 2021  (NYERI)

PETER WAITITU NJAU........................................................................TENANT/APPLICANT

VERSUS

EDWARD KIBE HOMBE & 2 OTHERS................................LANDLORD/RESPONDENTS

RULING

1. By a motion dated 28th January 2021, the Applicant/Tenant sought various orders against the Respondents.

2. Prayers 1 and 2 were granted at the ex-parte stage and the only prayer that remained for consideration is prayer 3 thereof.

3. The application is supported by the affidavit of the Applicant sworn on 28th January 2021 and the grounds on the face of the application.

4. The applicant deposes that the 2nd Respondent issued an illegal proclamation notice dated 13th January 2021 for distress of rent on account of “strange” and alleged rent arrears of Kshs.588,000/- which is not owing.  The said proclamation was issued under instructions of the 1st and 3rd Respondents.

5. According to the Applicant, the proclaimed goods constitute business stock apparels and tools of trade.

6. He states that he has been remitting rent to the 3rd Respondent who is the managing agent of the 1st Respondent and the proclamation notice was issued in bad faith.

7. In the month of December 2020, the Applicant deposes that he paid Kshs.118,000/- in cash and a further Kshs.140,000/- to the 3rd Respondent which was not receipted by the latter despite requests to do so.

8. The Applicant contends that the proclaimed properties are worth huge amount of money which have been undervalued by the 2nd Respondent and unless the proclamation is stayed, he stands to suffer irreparable damage which cannot be compensated by way of damages.

9. The Applicant therefore prays for an order that the proclamation notice of attachment dated 13/1/2021 be declared null and void.

10. He also prays for costs of the application.

11. The application is opposed through a replying affidavit of the 1st Respondent who confirms that he authorized the auctioneer to levy distress against the Tenant who owed Kshs.646,000/- in rent arrears as at December 2020 as per his annexure EK1.

12. After receipt of the demand letter, the Tenant paid Kshs.118,000/- on 31st December 2020 leaving a balance of Kshs.528,000/- and as at January 2021, the amount owing was Kshs.588,000/-.

13. Distress was duly carried out and a proclamation issued on 15th January 2021 and on 21st January 2021, the Tenant paid Kshs.140,000/- which reduced the amount due to Kshs.448,000/-.

14. The Tenant further paid Kshs.120,000/- on 31st January 2021 leaving the balance at Kshs.328,000/-.

15. As at the date of proclamation, a sum of Kshs.588,000/- was owing in rent arrears and as such the application is an abuse of court process according to the Respondents.

16. It is the Respondents’ case that the applicant has been paying rents after demand and that he has failed to give any evidence to show that he does not owe any rent arrears.

17. The Applicant filed a supplementary affidavit sworn on 15th March 2021 stating that due to Covid-19 crisis which led to closure of business, a waiver was given of Kshs.268,000/- for the period before December 2020.

18. He therefore admitted rent arrears of Kshs.120,000/- and not Kshs.388,000/-.

19. The application was ordered to proceed by way of written submissions.  However, only the Respondents filed  submissions.

20. I am now called upon to determine whether to allow or deny the application.  Secondly, I am called upon to determine who is liable to pay costs.

21. It is the Respondents’ submission that no evidence of waiver of Kshs.268,000/- has been tendered by the Applicant and that the principles of granting an injunction have not been established.

22. I have considered the application against the law applicable and make the following findings:-

(i) The Applicant has failed to bring himself within the principles of granting a temporary injunction.

(ii) The applicant has failed to demonstrate that he has paid rent as and when the same fell due and payable.

(iii) No evidence was tendered to demonstrate that a waiver was granted to the applicant in the sum of Kshs.268,000/- or any other sum.

(iv) A landlord who is owed rent by a Tenant is entitled to levy distress under section 3 of the Distress for Rent Act, Cap 293 without any recourse or leave of this Tribunal.

(v) The Applicant admits owing Kshs.120,000/- in rent arrears to the Landlord.

(vi) Several payments were made by the Tenant while the application was pending before this Tribunal which is further evidence of indebtedness on the part of the Applicant.

23. In the premises, the Applicant is not entitled to the equitable remedy of an injunction or declaration of nullity in respect of the proclamation of attachment dated  13th January 2021.

24. I therefore proceed to dismiss the application with costs to the Respondents.

25. The Respondents’ costs are assessed at Kshs.30,000/-.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 10TH DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BSUINESS PREMISES RENT TRIBUNAL

Ruling delivered in the absence of the parties.