Serah Wairimu v Westfield Shopping Mall Ltd & Olive Joycare [2021] KEBPRT 219 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E019  OF 2021  (NAIROBI)

SERAH WAIRIMU..............................................TENANT/RESPONDENT

VERSUS

WESTFIELD SHOPPING MALL LTD..........LANDLORD/APPLICANT

OLIVE JOYCARE............................................................................ AGENT

RULING

1.  By a motion dated 12th May 2021, the Landlord/Applicant moved this Tribunal seeking for restraining orders against the Tenant from moving and/or carting away goods from the rented premises at Westfield shopping Mall pending hearing and determination of the application.

2.  It further seeks that the Tribunal vacates the fraudulent ex-parte orders obtained by the Tenant/Respondent or the same be set aside.

3.  The application is supported by the affidavit of one Robert Nyamweya Onchonga sworn on 13th May 2021 and the grounds set out on the face of the application.

4.  It is the Landlord’s case that the Tenant/Respondent had rent arrears amounting to Kshs.323,000/- and if allowed to move out shall occasion great loss and damage to it.

5.  The Landlord further contends that the Tenant/Respondent fraudulently obtained ex-parte orders without disclosing to this Tribunal that she had rent arrears and never served the Applicant with her application.

6.  The Landlord has annexed invoices served upon the Tenant/Respondent but she had deliberately failed to pay monthly rent since the month of August 2020 which had accumulated to Kshs.323,000/-.

7.  According to the Landlord, the tenant through her application misrepresented facts to the Tribunal in order to defraud it of the rent arrears owed.

8.  The Landlord deposes that  it has invested heavily in the leased premises and is entitled to enjoy the fruits of the investment and was in danger of incurring irreparable loss and damage unless the prayers sought in the application are granted.

9.  The application is opposed through a replying affidavit sworn on 18th June 2021 by the Tenant/Respondent in which she denied being in arrears of Kshs.323,000/-.  She states that she does not owe the Landlord any monies.

10. She deposes that her business dwindled after the Government announced existence of Covid-19 in Kenya and that she agreed with the Landlord to a reduction of rent to Kshs.24,000/- from the month of April 2020 until parties agreed otherwise.  The Tenant attaches an email dated 20th October 2020 by her to Ednah Ondieki, the agent.

11. She further deposes that she duly paid rent of Kshs.24,000/- for the month of April, May, June and July 2020 and asked the Landlord to utilize the rent deposit paid at the beginning of the tenancy in the sum of Kshs.90,000/- as rent for August, September and October 2020 which request was conceded.

12. As business was not picking up, in the month of October 2020, the Tenant  the premises deposes that she informed the Landlord  that she intended to vacate at the end of November 2020 and upon reconciliation of the rent account, it was found that she only owed Kshs.30,000/- which would be payable before leaving the premises.

13. However, on 10th November 2020, the Tenant found the premises locked by the Landlord which had broken her padlock and replaced it.  On 27th November 2020, the Tenant paid the agreed rent balance notwithstanding the illegal closure.

14. By 29th November 2020 when the Tenant wanted to remove her properties, the premises were still closed.

15. The Tenant states that the premises remained closed despite several emails sent to the Landlord’s agent to open and allow her to take her properties which did not elicit any response.

16. Sometimes in April 2021, the Tenant claims to have been invited by the Landlord to its office to agree on the way forward where she met the Landlord,  Edna Kwamboka (agent) and an auctioneer who was said to have been commissioned to sell her properties unless she paid Kshs.100,000/- in auctioneers who was said to have commissioned to sell her properties unless she paid Kshs.100,000/- in auctioneer’s fees and rent from December 2020 to April 2021.

17. It is at that point that the Tenant decided to file the instant proceedings. She therefore maintains that she was not in any rent arrears and that it is the Landlord who broke her padlock and locked the premises illegally thereby interfering with her right of access and possession.  This has occasioned her mental and psychological anguish.

18. The Tenant therefore contends that it would be unjust, corrupt, unconscionable, unfair, illegal and without factual or legal basis for the landlord to ask her to pay for rent for the period she did not have possession or occupation of the business premises.

19. According to the Tenant, there was no basis upon which she could be required to pay auctioneer’s charges since no distress had taken place and the said demand was therefore a corrupt scheme to unjustly enrich the Landlord at her expense.

20. As such, the Tenant submits that the instant application is an abuse of court process by the Landlord to cover its illegal and unlawful action and ought to be dismissed with costs.

21. By a further affidavit sworn on 23rd August 2021, the Tenant contends that the Landlord was aware of the application pursuant to which the orders sought to be set aside were granted having filed a certificate of urgency on 13th May 2021 when the application was coming up for hearing instead of filing a replying affidavit.

22. The Landlord/Applicant has not filed any further affidavit to convert the depositions  made in the Tenant’s replying and further affidavits.

23. On 23rd July 2021, parties were directed to file written submissions and both complied.  The Landlord’s submissions are dated 13th August 2021 while those of the Tenant are dated 9th August 2021.

24. The issues for determination in this matter going by the pleadings and submissions are:-

(a) Whether the Landlord is entitled to the orders sought in the application dated 13th May 2021.

(b) Who is liable to pay  costs of the application?

25. I have considered the application as well as the submissions filed by both parties and hereby make the following findings:-

(i)  The relationship between the Tenant and Landlord is a controlled tenancy which is within the provisions of Cap. 301, Laws of Kenya.

(ii)  The initial agreed rent for the premises was Kshs.30,000/- which was reduced to Kshs.24,000/- with effect from April 2020 to July 2020  owing to the Covid-19 pandemic.

(iii)  The Tenant had paid full rent from April 2020 up to July 2020 and requested the Landlord to apply her rent deposit of Kshs.90,000/- towards rent for August, September and October 2020.

(iv) The Tenant notified the Landlord of her intention to vacate the premises by end of November 2020 and had agreed to repaint the premises going  by the email correspondence attached to the replying affidavit.

(v)  The landlord closed the premises sometimes on 27th November 2020 without a court order or other lawful justification in an attempt to block the Tenant from leaving the premises.

(vi)  The Landlord is disentitled to claim rent for the period the premises remained closed as a tortfessor cannot be allowed to benefit from his own wrong  doing.

(vii) There is no evidence that the application dated 16th April 2021 was served upon the Landlord since no affidavit of service was filed before the orders of 20th April 2021 were issued.

(viii) The Landlord was condemned on unheard and there is need to hear both parties on the dispute of rent due.

(ix) There is need for reconciliation of accounts before the Tenant is allowed to move out of the premises save that the period between December 2020 and when the Tenant shall move out shall be excluded from tabulation of rent due and payable.

(x)  The landlord cannot deny the Tenant the right to vacate the premises upon her fulfilment of the obligations agreed upon or implied under Cap.301 Laws of Kenya.

(xi)  The dispute as to the amount of Kshs. 323,000/- claimed by the Landlord in alleged rent arrears shall require to be determined by way of reconciliation of accounts and affidavit evidence.

26. In regard to the right to a hearing, I need to only cite the Court of Appeal decision in Gulamhussein f. Gulamhussein – vs- Imperial Bank Limited (in Receivership) & another (2018) eKLR at“the centrality of the right to be heard was succinctly put by this court in Mbaki & Others – vs- Macharia & another (2005) 2 E.A 206 at page 210 as follows:-

“ The right to be heard is a valued right, it would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard”.

“11. It did not matter that the learned Judge would have arrived at the same decision even after hearing the Appellant.  This much was appreciated by Nyarangi J.A. in Onyango –vs- Attorney General (1986-1989) E.A. 456 at page 460:-

“A decision in breach of the rules of natural Justice is not cured by holding that the decision would otherwise have been right.  If the principles of natural Justice is violated, it matters not that the same decision would have arrived at”.

27. In the premises, I make the following orders:-

(a) The application dated 13th May 2021 is hereby allowed in terms of prayers 2 & 3 pending hearing and determination interpartes of the application dated 16th April 2021.

(b) The Landlord is granted leave to file and serve its replying affidavit together with a statement of rent account in respect of the amount of Kshs.323,000/- claimed as rent arrears within the next 14 days hereof.

(c) The Tenant shall be at liberty to file and serve further affidavit, if need be, within 7 days of service of the said response.

(d) Thereafter a date for directions on the manner of disposal of the application shall be fixed.

(e) For avoidance of doubt, the period after 27th November 2020 shall be excluded for purposes of tabulation of the rent owing.

(f)  The costs of the application shall be in the cause.

DATED, SIGNED & DELIVERED THIS 30TH DAY OF SEPTEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Munyui for Tenant/Respondent

No appearance for the Landlord

Further:  Tenant (Respondent to serve the orders issued herein upon the Landlord/applicant and the timelines set out herein shall only apply from the date of service.