Robert Ndemo v Evelyne Ochieng & Samuel Otieno Ochieng [2022] KEBPRT 85 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E522   OF 2021  (NAIROBI)

ROBERT NDEMO.......................................................................TENANT/APPLICANT

VERSUS

EVELYNE OCHIENG.......................................................LANDLORD/RESPONDENT

SAMUEL OTIENO OCHIENG....................................... RESPONDENT/LANDLORD

RULING

1. This is a ruling in respect of a notice of motion dated 21/9/2021 in which the tenant/applicant is seeking in material part for an order that the Respondent allows him to continue with his business without interruption pending hearing and determination of the suit.  He also seeks for an order of prohibition against the respondents from interfering with his quiet occupation and lawful enjoyment of the suit premises located at Kahawa Sukari pending hearing and determination of the suit.

2. The application is supported by the applicant’s affidavit of even date and the grounds on the face thereof.  The applicant has been running business in the suit premises for over 3 years and has dutifully paid rent yet the landlord intended to maliciously evict him.  This was going to affect the tenant’s livelihood and business where he had heavily invested.

3. The application is opposed through a replying affidavit which is undated but filed in court on 4th October 2021 by the 1st Respondent/Landlord.

4. According to the landlord, the agreed rent is Kshs.4000/- per month but the tenant had consistently and persistently defaulted in rent payment leading to a balance of Kshs.21,000/- as at the date of filing the affidavit.  As such the tenant had come to court with unclean hands.

5. The landlord deposes that the space rented to the tenant was empty and she required to develop it for her own personal use.  She deposes that the one month notice issued to the tenant on 16th August 2021 was reasonable and  given in good faith within the law.

6. The 1st Respondent therefore prays that the applicant be ordered to pay the rent and vacate the premises stating that the application is incompetent and has no merit.

7. The applicant filed a further affidavit sworn on 18th October 2021 where he denies being in rent arrears stating that the landlord refused to accept rent for August and September 2021 in the sum of Kshs.8000/- with an intention to evict him without a court order.

8. The tenant states that he is willing to pay the amount in arrears and that the landlord should follow the due legal process to obtain possession.

9. The application was ordered to proceed by way of written submissions but only the applicant complied.

10. The issues for determination are:-

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

(b) Who is liable to pay costs?

11. The principles upon which courts issue injunctions were long settled in the case of Giella – vs- Cassman Brown and Co. Ltd (1973) EA 358 which have been applied as follows:-

(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.

12. It is clear from the affidavits filed that the landlord issued a one month’s notice to the tenant to vacate the premises to enable her develop it for her own use.  The said notice has however not been exhibited by either party.

13. Section 4(2) of Cap. 301 stipulates that a landlord who wishes to terminate a controlled tenancy or to  alter to the detriment of the tenant any term or condition in or right or service enjoyed by the tenant under such tenancy shall give notice in that behalf to the tenant in the prescribed form.

14. The tenant contends that in furtherance of  the intended illegal eviction, the landlord declined to accept rent from August 2021.  Although the landlord states that he was in arrears of Kshs.21,000/-, there is no tabulation of how the same is made up.

15. The tenant came to this tribunal fearing that unless he was granted protection, he risked illegal eviction.  It is therefore my view that the tenant is seeking for a quia timet injunction which was defined  in the case of Kwality Candies & Sweet Ltd – vs- Industrial Development Bank Limited (2005) eKLR at page 6-7/11 as follows:-

“A quia timet action is not based upon hypothetical facts for the decision of an abstract question.  When the court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the court.  It will act at once and protect the rights of the party who is in fear and thus supply the need of what has been deemed protective justice.  It is a very old principle”.

16. In the circumstances, the applicant is entitled to be protected from illegal eviction in line with the preamble to the landlord and tenant (Shops, Hotels and Catering Establishments Act, Cap. 301 Laws of Kenya.

17. I have looked at the reference filed by the tenant and the same raises the same issues as the application and as such this ruling shall apply to it.

18. Flowing from the foregoing analysis, the following final orders commend to me:-

(i) The landlord/Respondent is restrained from evicting the tenant or in any other way interfering with his quiet occupation and possession of the suit premises situate on L.R. No. Ruiru Kiu Block 1/655 without following the procedure stipulated in Cap. 301, Laws of Kenya.

(ii) The OCS, Kahawa Sukari Police Station will assist in ensuring compliance with the said order.

(iii) The landlord shall be at liberty to serve a proper notice under section 4(2) of Cap. 301, Laws of Kenya.

(iv) The tenant shall continue paying rent as and when the same falls due together with any amount that may have fallen into arrears.

(v) Costs of Kshs.5000/- is awarded to the tenant to be defrayed against the rent account.

It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 10TH DAY OF FEBRUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in the absence of  both parties.