Susan Watheru Kimemia t/a Brimier Star Caterers v Martin Karanja & Jane Kabeti Murungi [2021] KEBPRT 105 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 282 OF 2021  (NAIROBI)

SUSAN WATHERU KIMEMIA..................................APPLICANT/TENANT

T/A BRIMIER STAR CATERERS

VERSUS

MARTIN KARANJA......................................1ST RESPONDENT/LANDLORD

JANE KABETI MURUNGI...........................2ND RESPONDENT/LANDLADY

RULING

1. By a motion dated 24th March 2021, the Applicant/Tenant is seeking for restraining orders against the Respondents from evicting and/or terminating the tenancy over the premises located at Manyara, Kirigiti Kiambu Municipality otherwise known as Brimier Star Caterers pending the hearing of the Tenant’s reference.

2. The application is supported by the affidavit of applicant sworn on 24th  March 2021 and the grounds set out on the face of the application.

3. The applicant runs a catering business in the respondents’ premises in the name of Brimier Star Caterers’ from June 2020 at an agreed rent of Kshs.20,000/-.

4. In the month of October 2020, the Landlord asked for Kshs.120,000/- as goodwill and the applicant obliged.  The landlord was to repair the premises by painting, wiring, plumbing and roofing at the commencement of the tenancy.

5. The landlord failed to carry out the envisaged repairs as a result of which the tenant incurred costs of Kshs.35,000/- in doing so.  This delayed the time for starting the business until November 2020.

6. On 9th February 2021, the landlord served a notice for termination of tenancy in contravention of the tenancy agreement and the law.

7. It is the tenant’s case that he had not recovered the business goodwill and was bound to incur huge loses.

8. The landlord has confronted the tenant on several occasions protesting sale of pork in the premises on grounds that the tenant was by doing so creating unfair competition with his business neighbours which allegation was unfounded.

9. The tenant deposes that he used Kshs.336,000/- in terms of repairs, purchase of business equipment part of which was financed with a Kshs.100,000/- loan which he was still paying.

10. The tenant therefore pleads that it would be unfair to terminate the tenancy at a time when her business had picked.  As such the termination is illegal and in bad faith.

11. The application is opposed through a replying affidavit of the 1st Respondent sworn on 3rd May 2021 in which it is stated that although the tenant expressed interest in June 2020, she was to take the stall after agreeing on terms and conditions guiding those premises.

12. According to the 1st Respondent, the Applicant did not observe the guidelines on the terms and conditions within Linkers Butchery owners compound, Linkers place, Kirigiti in Kiambu.

13. The 1st Respondent deposes that the payment of Kshs.40,000/- was not an initial payment to secure the premises but rent in arrears for 2021.  The admissibility of Mpesa messages is disputed.

14. According to the 1st Respondent, the Applicant was not ready to occupy the premises until October 2020 when he sought to occupy the stall.  There was no agreement for repairs as it was the tenant’s duty to make her business place as he deemed fit.  What was rented was an area/space for business and the tenant knew before undertaking to enter into the Linkers Butchery area zone.

15. As such, the tenant was to carry out repairs, construct her stall according to her own requirements and specifics and any alleged delay was never occasioned by the Respondents.

16. The tenant is alleged to be a defaulter who was not paying rent dutifully and on time and that the notice served upon her was legal and procedural.

17. The Respondents state that the tenant was not supposed to sell pork or meat under the terms of engagement.  She was to only trade as a “caterer”.

18. When the applicant started selling pork, other tenants complained as she was going against the agreement.  When she was confronted, she became rude and uncouth.

19. The applicant is said to have been in total breach of the mutual agreement in regard to not selling beef or pork in the linkers Butcheries Group zone and continued offering other foods not prepared in the area.

20. As such, the Respondents contend that the tenant has created unfair competition and disharmony among members of Linkers Butchery Zone and as such has approached the court with unclean hands.

21. The tenant is alleged to be in rent arrears of Kshs.140,000/- being seven (7) months rent and that she abused the court process in obtaining the restraining orders ex-parte.  As such the orders ought to be set aside.

22. On 15th April 2021, this Tribunal directed the Applicant to clear all the outstanding rent which she failed to do and as such the orders issued ought to be vacated according to the Respondent.

23. The tenant filed a further affidavit sworn on 17th May 2021 denying knowledge of the minutes marked “MK-1” as the same were not supplied to her at the time of entering into the tenancy agreement.

24. She confirms payment of Kshs.40,000/- from cooperative Bank to the 2nd Respondent’s Mpesa number.  She has also annexed a certified Mpesa statement showing the payments made towards rent.

25. She reiterates that the Respondents were obligated to undertake repairs of the premises and that her entitlement to refund in respect thereof had not been fulfilled.

26. The tenant deposes that she complied with the Tribunal order to clear the outstanding rent as per her Mpesa statements.

27. The tenant contends that the termination notice issued to her is not the one contemplated under Cap. 301, Laws of Kenya.  She denies that the term “caterer” restricts her from selling meat or pork.

28. The tenant contends that she paid rent and electricity bills in the sum of Kshs.24,900/- only for the Respondents to refund Kshs.20,000/- and retain the balance for the utility bill so as to force arrears.  She denies being in rent arrears.

29. The application was ordered to be canvassed by way of written submissions and both parties filed the same.  I shall therefore determine the application based on the affidavits on record and the submissions filed herein.

30. The issues for determination in this case are:-

(a)Whether the applicant is entitled to the reliefs sought in the application.

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

31. The principles upon which an interlocutory injunction is granted were settled in the locus Classicus case ofGiella – vs- Cassman Brown Ltd (1973) EA 358 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.

32. In regard to what constitutes a prima facie case, I only need to refer to the court of Appeal decision in Mrao Ltd – vs- First American Bank of Kenya Ltd & 2 others (2003) eKLR where it was held as follows at paragraph 4:-

“A prima facie case in a civil application includes but is not confined to a genuine and arguable case”.  It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”.

33. The present case was precipitated by a whatsapp notice through a group christened “Linkers Butchery Owners wherein the Respondents purported to terminate the  tenant’s tenancy by 31st March 2021.

34. Section 4(2) of cap. 301, stipulates as follows:-

“ A landlord who wishes to terminate a controlled tenancy or to alter  to the detriment of the tenant any term or condition in or any right or service thereof enjoyed by him under such tenancy shall give notice in that behalf to the tenant in the prescribed form”.

35. The notice issued to the tenant in this matter does not pass the test set out in the foregoing section as it is not in the prescribed form.

36. Section 4(4) of the said statute prescribes a minimum period of two (2) months for the notice yet the one given herein does not give such period.

37. In view of the foregoing and without addressing any other issue, the applicant has clearly established a prima facie case with a probability of success.

38. On the second test of irreparable injury, I find and hold that any party threatened with commission of an illegality is entitled to the equitable remedy of an injunction.  In this regard I rely on the Court of Appeal decision in Thomson Smith Aikman & others – vs- Muchoki & Others (1982) eKLR at page

“ The conditions for the grant of an interlocutory injunction were rightly understood but wrongly applied as follows: first, the appellants being lawfully in possession of the estates under the authority of the debentures executed by Mbo and Loresho and the defendants having unlawfully seized and continuing in possession of the estates, the appellants had shown a clear and overwhelming prima facie probability of success, the court ought never to condone and allow to continue a flouting of the law.  Those who float the law by infringing the rightful title of others and blazenly admit it, ought to be restrained by injunction.  If I am adding a new dimension for the grant of an interlocutory injunction, be it so.  Equity will not assist lawbreakers”.

39. In the instant case, the proposed termination of the applicant’s tenancy through an illegal notice is not to be contenanced by any court of equity, I find and hold that the application ought to succeed on the second limb.

40. Having no doubt on the first two principles, I need not consider the third ground which in any event would still succeed on the basis that the applicant being in possession of the premises should continue operating in the premises in the pendency of determination of the reference.

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

(a)The application dated 24th March 2021 is granted in terms of prayers 2 and 4 thereof.

(b)The applicant shall continue paying rent in respect of the suit premises pending hearing and determination of the reference.

(c)The costs of the application are granted to the applicant.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 12TH DAY OF OCTOBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

J.M. Njenga for Tenant/Applicant

Kibathi for the Landlord