Sarah Mugo t/a Shilloh Loaf v Charity Kabari Gacheni [2022] KEBPRT 37 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 572 OF 2020 (NAIROBI

SARAH MUGO T/A

SHILLOH LOAF.................................................................TENANT

VERSUS

CHARITY KABARI GACHENI................................LANDLORD

RULING

1. The Tenant’s/Applicant’s notice of motion dated 8th June 2020 seeks the following orders;

a. Spent

b. An order compelling the Respondent to immediately reconnect electricity supply back to the suit premises.

c. An order restraining the Defendant/Respondent from in any manner interfering with the Applicant’s tenancy pending the hearing of the application inter partes.

d. An order allowing the Tenant to pay her (sic) of Kshs 258,000/- in instalments.

e. An order that the OCS Kayole do ensure compliance with these orders.

f. Costs.

2. The application is based on the grounds set out on the face of the application and the affidavit of Sarah Mugo the Applicant and which I summarize as follows;

a. That the Tenant currently pays to the Landlord rent at the rate of Kshs 56,000/- per month.

b. That the Tenant has been diligent in the payment of rent save for a few months.

c. That the Tenant has fully paid the rent up to February 2020 and part of March 2020.

d. That the Tenant admits owing rent arrears in the sum of Kshs 258,000/- which she is ready and willing to pay in instalments.

e. That on 2nd June 2020, the Respondent disconnected the Tenant’s electricity without any reasonable grounds.

f. That the disconnection of electricity is illegal and contrary to the provisions of the law Cap 301 of the Laws of Kenya.

g. That getting the Tenant out of the premises will expose her to irreparable harm.

3. The application is opposed by the Respondent. She has sworn a replying affidavit which may be summarized as follows;

a. That the meter to which electricity was disconnected on 3rd June 2020 is in the name of Wycliffe Waga Obundi.

b. That the disconnection was done by an electrician due to an illegal and dangerous looping done sometimes in March and discovered in or about 3rd June 2020.

c. That the illegal looping was meant to access electricity without payment to Kenya Power and Lighting Company.

d. That the Applicant is in rent arrears amounting to Kshs 426,000/- and not Kshs 258,000/- as she purports.

e. That the Applicant has a duty to pay rent promptly as per the lease agreement between the parties.

4. Both parties have filed their written submissions in support of their respective positions. I have read and considered the same in the course of writing this ruling.

5. The issue that arises for determination is whether the Applicant is entitled to the orders sought in her application.

6. The Tenant’s contention is that the Respondent/Landlord has disconnected the electricity supply without any reasonable grounds. The Respondent on her part has explained that the electricity was disconnected by an electrician due to what the Respondent termed as an illegal connection which was dangerous to the whole building wherein the suit premises is situated.

7. The Tenant has not disputed this statement by the Landlord in her replying affidavit and only contented herself by a statement in the submissions that the Respondent had not proved their claim. I do note that the Tenant did not file a further affidavit to contest the averments of the Landlady in their replying affidavit.

8. On 11th June 2020, an order was made to compel the Landlady to reconnect the electricity supply. This order seems to have been varied by the order of the Tribunal of 14th July 2020 when the Tribunal ordered;

“The Tenant shall supply for an electricity meter in her name with facilitation from the Landlord.”

9. The Tenant does not seem to have done anything to get the electricity meter registered in her name. It has not been demonstrated that the Tenant approached the Landlady for facilitation and the Landlady declined to so facilitate. In these circumstances, the order which directed the Landlady to reconnect electricity was replaced by an order requiring the Tenant to have an electricity meter registered in her name. the Landlady could not therefore connect electricity without the meter being registered in the Tenant’s name.

10. The Tenant has admitted being in arrears of rent. The sum the Tenant admitted as at June 2020 was Kshs 258,000/-. The Tenant has requested the Tribunal to allow him to pay the rent in instalments. As at the date of writing this ruling, the Tenant has not demonstrated that she has paid even a fraction of the rent admitted.

11. Needless to say, the rent continues to accumulate as it is evident no payments have been made to the Landlady. As things stand, the Landlady is not earning from the suit premises and neither is the Tenant who has admitted that she is not carrying on any business at the premises.

12. The Tenant seeks an equitable relief and such relief cannot be availed to one who has not done equity.

13. In the case of Julius Mogaka Gekonde T/A E-smart Technical College Vs Ouru Power Ltd & Another [2016] eKLR, the court held;

“I find that once the Plaintiff has acknowledged that he is indeed in arrears of rent, it means that he is in breach of the most critical term of their tenancy agreement and being a defaulting party, he cannot be seen to approach the court for an order of injunction which is an equitable relief/remedy only available to parties who come to court with clean hands.”

14. The Tenant has admitted to being in rent arrears. She is not using the suit premises for any useful purpose. She further failed to take any steps to have the electricity meter installed in her name. I do not think in these circumstances the Tenant has shown that she has a prima facie case with a probability of success against the Landlady.

15. The Tenant has further not demonstrated that she may otherwise suffer irreparable injury if the injunction sought is not granted. In fact, the Tenant makes only a bare statement to the effect that she has heavily invested in the business hence getting her out of the premises will make her suffer irreparable loss and damage. I do not find this bare statement sufficient to discharge the burden of the Tenant to demonstrate the irreparable loss she would suffer if the injunction sought is not granted.

16. The suit premises has by admission of both parties remained closed since the year 2020. The Tenant does not operate her business there anymore. The Landlord is not earning any revenue from the suit premises and the rent due from the Tenant continues to escalate. It is clear from the record that the Tenant has not paid any rent to the Landlord since March 2020 (according to the Tenant). the Landlord is entitled to a fair section of his investment in the suit premises.

17. I am persuaded that in these circumstances, the balance of convenience tilts in favour of the Landlady, in denying the Tenant the orders of injunction she has sought.

18. In the conclusion and in view of the foregoing discussion, I do find that the application dated 8th June 2020 has no merits and the same is dismissed with costs to the Landlady.

19. All the previous orders are discharged.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Ngutharithis16th March, 2022in the presence of Ms Munyagifor theLandlordand in the absence of theTenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL