Salim Ayub Mwalukuku T/A Al-Habib Pharmacy v Salim Somobwana T/A Somobwana Investment [2022] KEBPRT 231 (KLR)

Salim Ayub Mwalukuku T/A Al-Habib Pharmacy v Salim Somobwana T/A Somobwana Investment (Tribunal Case E034 of 2022) [2022] KEBPRT 231 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEBPRT 231 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E034 of 2022

Gakuhi Chege, Vice Chair

June 17, 2022

Between

Salim Ayub Mwalukuku T/A Al-Habib Pharmacy

Applicant

and

Salim Somobwana T/A Somobwana Investment

Respondent

Ruling

1. The tenant moved this tribunal vide a general complaint dated February 16, 2022 seeking orders against the landlord to remove the padlock from the business premises known as Al-Habib Pharmacy in Majengo Narok Road, Mombasa or in the alternative that he be allowed to break in under supervision of OCS, Makupa Police Station. He also seeks for restraining orders against interference with his peaceful and quiet occupation of the suit premises pending hearing and determination of the main suit.

2. The applicant/tenant also sought for restraining orders against the landlord from carrying away his tools of trade, attaching, selling, interfering and/or demanding unknown rent arrears and to remove his belongings from the tenant’s rented pharmacy premises pending hearing of the main suit.

3. The tenant filed an application of even date seeking the same orders which is supported by his affidavit and grounds on the face thereof.

4. It is the tenant’s case that he pays Kshs 17,000/- per month directly to the landlord or his wife by name Fatuma from September 2020. The tenant deposes that he renovated the premises at his own costs and the landlord refused to surrender a room used as a store for the pharmacy after receiving the deposit rent.

5. According to the tenant, his son applied for a loan with Inuka Africa in the sum of Kshs 20,000/- on February 10, 2022 which he used to clear the rent arrears due to the landlord as per annexure ‘SM-2’.

6. On February 10, 2022, the landlord closed the business premises after the tenant paid 3 months rent for December 2021,January and February 2022 after issuing a receipt for August, September and October 2021 without considering the amount paid to his wife. The payment receipt is annexed as ‘SM-3’ together with a photograph of the closed pharmacy.

7. The application is opposed through the landlord’s affidavit sworn on April 7, 2022 wherein he denies that the tenant carried out any renovations on the demised premises. He also denies using half of the premises.

8. The landlord contends that the tenant had defaulted to pay rent for the months of November 2021 to March 2022 amounting to Kshs 85,000/-. It is deposed that the tenant closed the shop owing to lack of stock. He therefore denies having closed the business.

9. The landlord therefore prays for dismissal of the application and an order for the tenant to pay the rent arrears.

10. Interim orders were given on February 22, 2022 directing the landlord to open the premises and desist from interfering with the tenant’s peaceful and quiet occupation thereof.

11. On May 18, 2022, this tribunal directed for an inspection of the suit premises and a report was filed on May 19, 2022.

12. The matter was ordered to proceed by way of written submissions and both the landlord’s counsel and the tenant complied. I shall consider the submissions together with the issues for determination.

13. The following issues arise for determination in this matter:-(a)Whether the tenant is entitled to the orders sought.(b)Whether the landlord is entitled to recover alleged rent arrears from the tenant.(c)Who is liable to pay costs?

14. It is not in dispute that the tenancy herein is controlled and that the same came into existence on September 25, 2020. The tenant deposes and replicates the same in his submissions that he was negatively affected by Covid-19 pandemic. He claims to have taken a loan of Kshs.30,000/- to clear the rent for the months of December 2021, January & February 2022 which had accrued on account of the harsh financial circumstances occasioned by Covid-19 pandemic.

15. The landlord however claimed rent for November & December 2021, January and February 2022 as rent arrears. The tenant claims to have paid rent through the landlord’s wife on several unspecified occasions.

16. The tenant admits that he fell into arrears after the landlord closed his shop which was only reopened by an order of this tribunal. The business was adversely affected by the said closure thereby falling into rent arrears.

17. The tenant submits on issues of distress for rent and res judicata yet I have not come across any evidence of such distress or a previous case involving the issues in this matter. These are irrelevant issues as much as those touching on the loan in arrears. They do not form part of the investigations that this tribunal is enjoined to carry out in this matter.

18. I have noted from the pleadings and the rent inspection report filed herein that the space used by the landlord as a store has never been in possession of the tenant. He started paying monthly rent of Kshs 17,000/- despite claiming that the landlord was to surrender the said space as part of the suit premises. There being no written lease/tenancy agreement, I find that the tenant has not placed before me evidence to demonstrate that the said space was part and parcel of the demised premises.

19. The tenant also claims in his submissions for loss of business in the sum of Kshs 156,000/- for 13 days the premises remained closed. No evidence has been placed before me on how the said figure was arrived at. This being a claim for special damages ought to have been specifically pleaded and strictly proved (see the case of Hahn vs Singh(1985) eKLR).

20. On the other hand the landlord submits that the tenant was in rent arrears of Kshs 102,000/- as at April 30, 2022 being rent arrears from November 2021 to April 2020 (both months inclusive). The tenant has on his part not tendered evidence that he had paid rent for the months of August, September and October 2021 to the landlord as alleged. It is trite law that he who alleges must prove.

21. Section 107(1) of the Evidence Act cap 80, Laws of Kenya provides that:-“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

22. I note that the tenant applied for a loan of Kshs 20,000/- with Inuka Africa on February 10, 2022 to enable him pay arrears of rent which had accrued. A sum of Kshs 50,000/- was paid on 11/2/2022 and the receipt for the said amount exhibited by him shows that it was in respect of rent for August to October 2021. The tenant claims to have paid rent for the said period through the landlord’s wife. No evidence of such payment inclusive of date, place and time was tendered in that respect. In the premises, I find and hold that the tenant did not discharge his burden of proof as required under section 107 and 109 of the Evidence Act. I therefore find that no such rent had been paid and the landlord was entitled to claim for it and apply the amount paid on 11/2/2022 towards the said months’ rent.

23. In view of the foregoing analysis, I am not convinced that the tenant is entitled to the equitable remedy of an injunction in line with the decisions of the superior court in the cases of Samuel Kipkori Ngeno & Another vs Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR, and Kyangavo vs- Kenya Commercial Bank Ltd & Another(2004) eKLR and Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358).

24. In conclusion therefore, I make the following final orders:-i.The tenant’s application dated February 16, 2022 and the complaint of even date is dismissed under section 12(4) of cap 301 Laws of Kenya.ii.The landlord is entitled to use lawful means to recover all the rent in arrears from November 2021 and all unpaid months thereafter from the tenant.iii.The interim orders given on 22/2/2022 are hereby discharged.iv.The landlord is entitled to cost of Kshs 20,000/- against the tenant.It is so ordered.

RULING SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JUNE 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kahindi holding brief for Mwarandu for LandlordNo appearance by the Tenant