Richard Otinga Anzere t/a Wanjere Workshop v Abdul Mwaserah t/a Ultimate Concept Ltd & another [2022] KEBPRT 665 (KLR)

Richard Otinga Anzere t/a Wanjere Workshop v Abdul Mwaserah t/a Ultimate Concept Ltd & another (Tribunal Case 247 of 2020) [2022] KEBPRT 665 (KLR) (29 July 2022) (Judgment)

Neutral citation: [2022] KEBPRT 665 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 247 of 2020

Gakuhi Chege, Vice Chair

July 29, 2022

Between

Richard Otinga Anzere t/aWanjere Workshop

Applicant

and

Abdul Mwaserah t/a Ultimate Concept Ltd

1st Respondent

Autoland Auctioneers

2nd Respondent

Judgment

1. The tenant moved this tribunal vide a motion dated November 16, 2021 seeking for restraining orders against the landlord from auctioning, evicting and/or in any other manner interfering with his quiet and peaceful occupation of the suit premises on plot no Mombasa Block IX/393, Mombasa County.

2. The said application was prompted by various rent demands made by the landlord culminating with a proclamation notice issued by Autoland Auctioneers on July 23, 2021 which the tenant contends was unprocedural, unfair, arbitrary and unreasonable as the suit premises is in a dilapidated state, lacks proper drainage system and the walls have been neglected.

3. According to the affidavit in support of the application, the relationship between the two parties began on January 1, 2013 at an agreed monthly rent of Kshs 30,000/-. The tenant refers to an agreement dated and signed on January 1, 2013 but has not exhibited it before court.

4. The tenant contends that since March 2020, he has been struggling with operation of the business on account of government directive for closure of workshops on account of Covid-19 pandemic.

5. The tenant deposes that the landlord instructed one Protas Endekwa to collect rent on his behalf without prior information to him nor issuance of an introductory letter to him. The tenant claims to have paid Kshs 469,000/- to the said person without being issued with rent payment receipts. He however annexed as ‘ROA 1’ some receipts.

6. The enant further deposes that his premises were closed by the said agent between September 2, 2020 and September 25, 2020 who commanded removal of all vehicles from the premises used as a garage. Demand letters dated September 12, 2020 and September 14, 2020 are annexed as ‘ROA2 & 3’ respectively.

7. As a result, the tenant filed BPRT NO 247/2020 which failed to kick off as the tribunal was not operational at the time. The reference is annexure ‘R0A4’. On October 14, 2021, the tenant wrote to the 1st respondent on the loss incurred but he neglected to respond to annexure ‘ROA 5’.

8. Fearing possible levy of distress and eviction, the tenant came to this tribunal and obtained interim orders on November 18, 2021.

9. The tenant filed his list of documents dated February 1, 2022 to which he attached Mpesa statement from October 1 to November 30, 2021 and his statement of rent account from September 2019 to January 24, 2022.

10. The landlord on the other hand filed a replying affidavit sworn on March 29, 2022 in opposition to the application. It is the landlord’s case that the tenancy agreement entered into with the tenant expired a long time ago and the tenant despite being told to vacate from the suit premises became adamant. As such there exists no landlord/tenant relationship and the tenant ought to be treated as a trespasser.

11. It is the landlord’s case that even before Covid-19 pandemic, the tenant was in rent arrears amounting to Kshs 620,000/- which he partly paid. He attached a demand letter dated September 30, 2020 as annexure ‘AM-1’. Although the tenant by his demand letter of October 14, 2020 claimed Kshs 1,027,000/-, he paid Kshs 260,000/- as rent to the landlord.

12. The landlord deposes that the notice to vacate issued to the tenant expired on November 4, 2020 but he declined to vacate or pay rent which was “reckless showed and showed lack of respect and good will by the applicant”.

13. According to the landlord, as at July 22, 2021, the tenant was in rent arrears of Kshs 371,500/- and upon engaging the services of 2nd respondent, the tenant paid Kshs 100,000/- on being issued with distress for rent notice and a further payment of Kshs 40,000/- on November 24, 2021. As at March 29, 2022, the rent arrears stood at Kshs 231,500/-.

14. The landlord denies that the government issued notice for closure of workshops owing to Covid-19 pandemic. During the said period, the applicant claims through his letter of October 14, 2020 that he was making Kshs 5000/- per day which is contradictory.

15. It is the landlord’s case that in the year 2021 and before, the applicant was paying rent to his caretaker who passed away later that year and was always being given receipts. He used to pay rent through Mpesa and the claim of Kshs 1000/- paid as transport is therefore illogical, ridiculous and a show of lack of genuineness of the tenant”.

16. As such, the landlord seeks for discharge of the interim orders and the tenant be ordered to give vacant possession of the premises as his continued stay is an infringement of the property rights of the landlord.

17. The application proceeded through viva voce evidence and both the applicant and respondent testified on the same issues discussed above. The tenant produced Mpesa statements for rent payment. He admitted having paid Kshs 200,000/- after filing the suit to the landlord. He stated that he wanted to be provided with accounts by the landlord and compensation for loss of business by the agent.

18. In cross-examination, the tenant confirmed having been issued with a notice to vacate the premises. The sum of Kshs 1. 178,000/- claimed by the tenant is not based on any professional assessment according to him.

19. The tenant admitted having paid Kshs 100,000/- after the landlord sent auctioneers to recover Kshs 414,600/- in November 2021. He later paid Kshs 40,000/-. He has not paid anything else thereafter. He has not paid anything else thereafter. He confirmed that he has not paid the debt in full.

20. On being further cross-examined by the court, the tenant stated that he did not cause the landlord’s agent to sign for money collected from him. He was not issued with receipts.

21. On his part, the landlord testified that he issued the tenant with rent receipts for all payments made to him or through his agent (Protus). He denied that he authorized the agent to collect Kshs 1000/- for transport and said that he was not aware of Kshs 559,000/- paid to Protus by the tenant. The landlord stated that his agent always issued receipts except when money was paid via Mpesa directly to him. He would instruct the agent to issue receipts thereafter. The tenant’s Mpesa statements tallied with those of the landlord and it was the latter’s evidence that the tenant has never disputed the amount owing.

22. As at May 9, 2022, the tenant is said to have owed Kshs 531,000/- to the landlord.

23. Although both parties were granted 14 days each to file submissions, none complied. I am therefore called upon to determine the following issues based on the pleadings and evidence on record:-a.Whether the tenant owes rent arrears to the landlord and if so how much?.b.Whether the tenant is entitled to the reliefs sought in the application dated November 16, 2021. c.Whether the landlord is entitled to vacant possession of the suit premises.d.Who is liable to pay costs?.

24. There is no dispute that several demand letters were issued upon the tenant by the landlord’s advocates in respect of rent arrears owing by the tenant at different times. There were also proclamations by auctioneers in that regard. The tenant did not dispute owing the amount demanded and instead after receiving the last proclamation on July 23, 2021 for a sum of Kshs 371,000/- in rent arrears, he paid a total sum of Kshs 140,000/- leaving a balance of Kshs 331,000/-. In cross-examination by counsel for the landlord, the tenant confirmed that he had not paid the rent arrears in full and that he did not pay any other sum thereafter despite continuing in possession of the suit premises.

25. It is therefore clear that the tenant is not serious when he insists on accounts yet he has shown through his own evidence that he used to be issued with rent payment receipts as evidenced by annexure ‘ROA 1’. I did not believe him when he said that he paid Protus Indegwa a total of Kshs 469,000/- and was not issued with receipts. He stated in his evidence that the said agent had no introduction letter and that the landlord had not informed him about the changes in the manner of paying rent. How did he then trust the said stranger with such a colossal payment of rent without any receipts or acknowledgements in writing?. The tenant knows that the said agent is deceased and cannot come to court to give evidence as “dead men tell no tales.” He should be let to rest and the tenant must be made to prove such payment which onus he has failed to discharge.

26. Under section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, whoever desires any court to give judgement as to any legal right or liability dependent on existence of any fact which he asserts must prove that those facts exist. The tenant has failed to prove that he paid the said amount to the landlord’s agent.

27. I therefore find and hold that the tenant was indebted to the landlord in the sum of Kshs 371,000/- as at July 23, 2021. He paid Kshs 140,000/- thereafter leaving a balance of Kshs 231,000/-. The said amount has continued to increase at a rate of Kshs 30,000/- per month and as at July 31, 2022 will be standing at Kshs 591,000/-. The landlord is entitled to use lawful means to recover the amount if the tenant does not settle before July 31, 2022.

28. As regards whether the tenant is entitled to the reliefs sought in the application dated November 16, 2021, the answer is in the negative. He who comes to equity must come with clean hands and must do equity. The tenant has not paid rent and has therefore not done equity. Payment of rent being the most cardinal duty of a tenant disentitles him to the equitable remedy of an injunction (see Samuel Kipkori Ngeno & Another vs Local Authorities Pension Fund (Registered Trustees) & Another (2013) eKLR).

29. Had this tribunal known that the tenant was indebted to the landlord in the manner disclosed through the hearing, it would not have issued the interim orders granted on November 18, 2021. As such, the interim orders are liable to be discharged forthwith.

30. As regards whether the landlord is entitled to vacant possession I note that, the tenant admitted having been served with notice to terminate tenancy but failed to vacate. Since he did not dispute the landlord’s evidence to that effect, I shall grant him an order for vacant possession under section 7(1) (b) as read with section 12 (1) (e ) of Cap 301, Laws of Kenya.

31. On the issue of costs, the same are in the honourable court’s discretion but always follow the event. I have no reason to deny the landlord costs.

32. In conclusion therefore,

33. the final orders that commend to me are:-i.The tenant is in rent arrears of Kshs 591,000/- as at July 31, 2022 and the landlord is entitled to use lawful means to recover the same forthwith.ii.The tenant is disentitled to the equitable remedy of injunction and the interim orders granted on November 18, 2021 are hereby discharged/set aside.iii.The landlord is entitled to vacant possession of the suit premises and the tenant is liable to be evicted from the suit premises being L R No Mombasa Block IX/393, Mombasa County through a licensed Auctioneer unless he vacates therefrom with immediate effect.iv.The OCS, Makupa Police Station shall provide security to the auctioneer during enforcement of the eviction order herein.v.The tenant shall pay Kshs 30,000/- as costs to the respondents herein.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Munoko for the landlordNo appearance for the tenant