Real Time Company Limited v Maingi & another [2025] KEBPRT 144 (KLR)

Real Time Company Limited v Maingi & another (Tribunal Case E1277 of 2024) [2025] KEBPRT 144 (KLR) (21 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 144 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1277 of 2024

Gakuhi Chege, Chair & J Osodo, Member

February 21, 2025

Between

Real Time Company Limited

Applicant

and

Claude Maingi

1st Respondent

Kameta Enterprises Auctioneers

2nd Respondent

Ruling

A. Dispute Background 1. The tenant/applicant moved this Tribunal vide a reference dated 20th November 2024 pursuant to Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, complaining that the landlord had threatened to levy distress unlawfully. The tenant further complains that the landlord had failed to furnish accounts of the rent paid and had declined rent payment.

2. The tenant simultaneously filed a motion of even date seeking for restraining orders against the Respondents from levying distress and or unlawfully interfering with its use and occupation of the demised premises pending hearing of the application and the reference. It also seeks to be allowed to deposit rent in this Tribunal.

3. The application is predicted on the grounds set out on the face thereof and the affidavit of TOM OGILA wherein it is deposed that the tenancy relationship begun on 1st June 2022 through a tenancy agreement of even date marked as annexure “TO 1”. The agreed monthly rent is Kshs 100,000/=.

4. It is the tenant’s case that it has been diligently paying rent since the commencement of the tenancy. However, the landlord through an Auctioneer posted a Proclamation notice dated 12th November 2024 marked as annexure “TO 2” on the front door of the demised premises without any prior notice.

5. The tenant through its Counsel on record, initiated negotiations aimed at settling the dispute and agreed to pay Kshs 100,000/= which was acknowledged vide annexure “KO 3”. The tenant drew postdated cheques which were delivered through a letter marked “TO 4” to the landlord’s Auctioneers who declined to accept them positing that the same had not been agreed upon.

6. The tenant therefore reads malice and ulterior motive on the part of the respondents who intend to deprive it of the demised premises. The tenant is seeking accounts of the rent paid to date, dates of such payments and how the outstanding rent is made up.

7. The tenant came to this Tribunal fearing the possibility of an illegal eviction on account of purported non-payment of rent. The tenant pleads that it is in the interest of fairness and justice to grant the orders sought.

8. Interim orders were granted ex-parte on 21st November 2024 pending hearing inter-partes on 19th November 2024.

9. The application is opposed through the replying affidavit of the 1st respondent sworn on 13th December 2024 wherein it is deposed that the proclamation notice was posted after the landlord’s agent (Lyold Masika Limited) informed the tenant through an email dated 10th October 2024 and WhatsApp messages of 16th and 25th October 2024 marked as annexure “CM3a” and “CM3b” of his intention to levy distress for rent in the event of failure to clear the same.

10. The landlord admits payment of Kshs 100,000/= through the Auctioneer and deposes that the tenant failed to clear the balance as agreed which is evidenced by the messages marked as annexures “CM4a” & “CMA4b”.it is therefore denied that the landlord harbors malicious intention to unlawfully evict the tenant. He instead accuses the tenant of intention to vacate the demised premises at the expiry of lease in December 2024 without clearing the rent arrears.

11. The landlord attaches a rent account statement as annexure “CM 1” showing a balance of Kshs 420,000/= as at 1st December 2024. The tenant is accused of issuing bad cheques to the landlord’s agent as evidenced by annexure “CM3b” making it untrustworthy.

12. According to the landlord, the tenant has not established a prima facie case to warrant issuance of an injunction having admitted being in rent arrears. The landlord therefore seeks for dismissal of the application with costs.

13. The application was directed to be canvassed through written submissions but only the landlord complied. The said submissions are dated 13th January 2025.

B. Issues for determination 14. The following issues arise for determination; -a.Whether the tenant is entitled to the reliefs sought in the reference and application dated 20th November 2024. b.Who shall bear the costs of the suit?

Issue (a) Whether the tenant is entitled to the reliefs sought in the reference and application dated 20th November 2024. 15. The tenant/applicant moved this Tribunal vide a reference dated 20th November 2024 pursuant to Section 12 (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, complaining that the landlord had threatened to levy distress unlawfully. The tenant further complains that the landlord had failed to furnish it with accounts of rent paid and declined rent payment.

16. The tenant simultaneously filed a motion of even date seeking for restraining orders against the Respondents from levying distress and or unlawfully interfering with its use and occupation of the demised premises pending hearing of the application and the reference. It is also seeking to be allowed to deposit rent in this Tribunal.

17. The tenant admits in his supporting affidavit that it owed rent arrears to the landlord and even sent postdated cheques valued at Kshs 150,000/= to his Auctioneers which were rejected. There is no evidence that the said amount or any further rent has been paid to date.

18. The landlord annexed a statement of rent account showing that the tenant was indebted to him in the sum of Kshs 420,000/= as at 1st December 2024. The landlord’s advocates submit that the tenant was in six (6) month’s rent arrears as at 31st January 2025. There is no supplementary affidavit to controvert the contents of the landlord’s replying affidavit.

19. The principles upon which an order of injunction can be granted were settled in the celebrated case of Giella Vs Cassman Brown & Co. Ltd (1973) E.A 358 wherein it was held that an applicant must demonstrate a prima facie case with a probability of success; secondly, an applicant ought to demonstrate that he will suffer irreparable loss or injury which cannot be atoned by way of monetary damages unless the injunction order sought is granted and if any of the foregoing conditions is in doubt; whether the balance of convenience is in favour of granting the orders sought.

20. In the case of Kyangavo Vs Kenya Commercial Bank Ltd & Another (2004) eKLR, at page 13, the Superior Court had the following to state on the obligations of an applicant for injunction;“Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the plaintiff in this case betrays him. It does not endear him to equitable remedies. He admitted in this Court, quite frankly, that since leaving the employment of the bank over four years ago, he has never paid a cent towards redemption of the loan. He admits that he is in default, and yet he is also in possession. He can’t have it both ways. Either he pays the loan, or allows the bank to realize its security. 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. In the hands of the plaintiff, a permanent injunction would wreak havoc to the first defendant, and that would be inequitable. While chargees are enjoined by law to follow the laid down procedures for the realization of their security, the Courts must not at the same time be converted into a haven of refuge by defaulters. Even lenders and charge have their own rights.” (emphasis added).

21. In the case of Samuel Kipkori Ng’eno & Another Vs Local Authorities Pension Trust (registered Trustees) & Another (2013) eKLR at paragraphs 9 & 12, the Superior Court had the following to state;“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. Why would a tenant allow himself to fall into such huge arrears of rent.……………………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 undeserving 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.”

22. We agree with the landlord’s submission that the tenant has not demonstrated that his application meets the threshold for granting a temporary injunction. In the premises, the application ought to fail.

Issue (b) Who shall bear the costs of the application? 23. Under Section 12(1)(k) of Cap 301, Laws of Kenya, costs of every suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall award costs of the reference to the Respondents.

C. Orders 24. In conclusion, the following final orders commend to us; -a.The tenant’s application dated 20th November 2024 is hereby dismissed with costs.b.For the same reasons, the tenant’s reference dated 20th November 2024 is hereby dismissed since it is based on the same grounds.c.The interim orders given on 21st November 2024 are hereby discharged forthwith.d.Costs of Kshs 30,000/= are awarded to the Respondents against the tenant.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF FEBRUARY 2025. HON GAKUHI CHEGE - PANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE A. OSODO - PANEL MEMBERIn the presence of: -Ms Nekoye for the 1st RespondentMomanyi h/b for Ogutu for the tenant