Shelmith Kuria v Catherine Njoki Kibe [2022] KEBPRT 116 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 18 OF 2021 (NAKURU)

SHELMITH KURIA...................................................................LANDLADY

VERSUS

CATHERINE NJOKI KIBE............................................................TENANT

RULING

1. The Tenant’s notice of motion dated 15th February 2021 seeks an order that the Respondent/Landlord be restrained from interfering with the Tenant’s peaceful use of and occupation of the suit premises pending the hearing and determination of the suit.

2. The application is supported by the affidavit of Catherine Kibe the Tenant herein and I proceed to summarize the same as follows;

a. That the Tenant pays to the Landlady a monthly rent of Kshs 45,000/- for the premises known as plot No. 9114 Nakuru Municipality.

b. That the Landlady/Respondent has put up a stair case obstructing and blocking the entrance to the Tenant’s shop.

c. That the Landlady has rented part of the demised premises to another Tenant.

d. That the Tenant has been paying her rent on time.

e. That the Landlady is in breach of the lease agreement between the parties which prohibits parties from blocking the stair cases and entrances amongst other things.

f. That the Respondent has put stair cases in front of the Tenant’s shop.

g. That the Landlady has allowed other Tenants to display their wares along the corridor blocking the Tenant’s branding.

h. That the Tribunal do order for compensation to the Tenant for lost business and suspends rent payment until the Landlady removes the staircases from the front of the Tenant’s shop.

3. The application is opposed.  The Landlady/Respondent has sworn a replying affidavit and a further affidavit both of which I summarize as follows;

a. That the Respondent has not frustrated the Tenant nor issued closure warnings.

b. That the Tenant/Applicant ought to be ordered to pay rent arrears.

c. That the Tenant does not co-exist with the other Tenants peacefully.

d. That the ground layout plan produced by the Tenant is not the one approved by the Nakuru County Planning Offices.

e. That the Landlady has never halved the demised premises.

f. That the lease presented by the Tenant is not signed by the Landlady.

g. That the Landlady has allowed other Tenants to display their wares along the corridors.

h. That the stairs the Tenant complains about were approved by the County Government and the Tenant paid for the same.

i. That the stairs were put up three years before the Tenant’s application was lodged.

j. That the Tenant’s branding can be seen clearly.

4. The only issue that arises for determination is whether the Tenant is entitled to the orders sought in her application dated 15th February 2021.

a. The Tenant’s complaint is that the Landlady has given out half of the suit premises to another Tenant and blocked her suit premises.  The Tenant further claims that the Respondent has erected a stair case in the frontage of her building and further that other Tenants have been allowed by the Respondent to display their wares along the corridor and therefore blocking the Tenant’s branding.

b. In answer to those complaints, the Respondent has stated that she has not given out the Tenant’s premises, that the Tenant has never been in occupation of the shop she claims to have been taken away from her as the same is the Nawasco Entry Point for water supply to the building.  The said premises is therefore not available to be leased out to anybody.

c. The Respondent further states that the stairs that the Tenant complains about were erected in the year 2019with the approval of the County Government of Nakuru.  On the issue of other Tenants displaying their wares along the corridors, the Respondent has stated that the Tenants have letters from the County Government of Nakuru to display their wares.

5. I do find that the Tenant has not established a prima facie case with a probability of success against the Respondent.  The Tenant has not established any infringement by the Respondent that calls for an answer as I find the answers given by the Landlady/Respondent to be sufficient.  The threats of auction alluded to in the supporting affidavit of the Tenant have not been established.

6. The Tenant has also not shown that she is likely to suffer irreparable injury which cannot be compensated by an award of damages.  The Tenant has not established by her pleadings or the oral submissions what loss if any, she is likely to suffer if the orders sought are not granted.  The Tenant/Applicant is still in occupation of the premises and carrying on her normal business, she has not established any threat to her business which is likely to lead to any hardship.

7. Being of the above view as concerns the first two considerations in the grant of interlocutory injunctions, I need not consider in whose favour the balance of convenience tilts.  I therefore do find the Tenant’s application dated 15th February 2021 unmerited and the same is dismissed with costs to the Landlord/Respondent.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman) this 5th day of January, 2022 in the absence of the parties.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL