Swaleh v Hassan Mohammed Hussein t/a Ilade Oil [2022] KEBPRT 828 (KLR)

Swaleh v Hassan Mohammed Hussein t/a Ilade Oil (Tribunal Case E026 of 2022) [2022] KEBPRT 828 (KLR) (Civ) (17 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 828 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E026 of 2022

Gakuhi Chege, Vice Chair

November 17, 2022

Between

Feisal Hussein Swaleh

Tenant

and

Hassan Mohammed Hussein t/a Ilade Oil

Landlord

Ruling

1. The tenant moved this tribunal through a complaint under section 12(4) of Cap 301 against the landlord on grounds that the latter had unlawfully ordered closure of his car wash and secondly that the landlord had failed to issue a statutory notice as per the law. The complaint is dated June 10, 2022.

2. The tenant simultaneously filed a motion dated June 8, 2022 seeking for restraining orders against the landlord from evicting him or from interfering with his business, 3 washing bay slots, two parking slots and upstairs office space at Ilade Oil petrol station in Embu.

3. Interim orders were given on June 28, 2022 pending hearing inter-partes on August 3, 2022. The application is supported by the affidavit of applicant sworn on June 8, 2022 in which it is deposed that the landlord through the station manager one Abdullahi verbally and without prior notice closed the tenant’s car wash.

4. He also gave instructions to the station’s security guard to ensure that the carwash does not operate and started turning away the applicant’s customers. As a result, the tenant was unable to conduct business in peace due to harassment by the respondent. This precipitated the filing of the instant suit.

5. The application is opposed through the replying affidavit of the respondent sworn on July 26, 2022, wherein he maintains that the applicant should vacate from the car wash to give room for renovation occasioned by his negligence to control waste water from the car wash which had drastically penetrated into the fuel storage tanks and mixed with fuel bringing the landlord’s business to a standstill.

6. The landlord deposes that a lot of his customers were complaining and his business was at the verge of being closed by relevant institutions such as EPRA and NEMA due to complaints raised by his clients on account of problems caused by the tenant’s negligence.

7. The landlord deposes that a controlled tenancy does not exempt a landlord from evicting a tenant provided the reasons for eviction are valid. Allegations of harassment are denied by the landlord.

8. According to the landlord, a controlled tenant can be evicted whether there is a lease agreement or not, provided the right procedure of issuing two month’s notice is followed prior to eviction and that consent of the tribunal or court was not required to evict an uncooperative tenant from a premises.

9. The landlord deposes that the applicant does not stand to suffer any irreparable harm but it is his business that stands at risk on account of waste water from the applicant’s car wash.

10. The issues for determination are:-(a)Whether the tenant is entitled to the reliefs prayed for in the complaint and application dated June 8, 2022. (b)Who is liable to pay costs?

11. The principles considered in an application for temporary injunction were settled in the case of Giella v Cassman Brown & Co Ltd [1973] EA 358. An applicant must establish a prima facie case with a probability of success. Secondly, an injunction will not issue unless the applicant might suffer irreparable injury which cannot be atoned by monetary damages and finally if the court is in doubt, it will decide the case on the balance of convenience.

12. In the instant case, the landlord has not denied the complaints made by the tenant but seeks to justify the same on the basis of perceived wrongs committed by the tenant’s carwash business which is said to generate spill over water which seeps into his petrol station fuel tanks. This is said to affect the quality of fuel stored therein thereby leading to complaints from the respondent’s customers and loss of business reputation.

13. The landlord therefore contends that he is entitled to evict the tenant subject to issuance of a two (2) month’s notice. However, no such notice is exhibited by him neither is there any report or warnings from EPRA or NEMA on the alleged menace created by the tenant’s business.

14. Section 4(1) of Cap 301, Laws of Kenya provides that no controlled tenancy shall terminate or be terminated nor any term or condition in or right of service enjoyed by the tenant shall be altered otherwise than in accordance with the said act.

15. Section 4(2) thereof provides 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 right or service enjoyed by him under such tenancy shall give notice in that behalf to the tenant in the prescribed form”.

16. In absence of such a tenancy notice therefore, any threatened eviction or eviction is illegal, null and void. This Tribunal having been established to inter-alia protect tenants of controlled tenancies from eviction shall be failing in its cardinal duty if it does not intervene in the circumstances of this case. The landlord is enjoined to follow the provisions of the act and prove the alleged transgressions against the tenant. He cannot wake up one day as it is alleged and decide to terminate his tenancy.

17. I am fortified in that regard by the court of appeal decision in the case of Aikman & Another v Muchoki & Others [1982] eKLR at page 4/6 where it was held as follows:-“………….the court ought never to condone and allow to continue a flouting of the law. Those who flout the law by infringing the rightful title of others and brazenly 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 law breakers”.

18. In the premises, I am satisfied that the tenant has brought himself within the principles of granting an injunction. I have also looked at the complaint filed by the tenant which raises the same issues as the application and I am entitled to make orders thereon without the need for a further hearing as the words used in section 12(4) of Cap 301 are “investigate any complaint” and I am satisfied on the evidence given by the tenant that he was justified to seek this Tribunal’s intervention under section 12(4) of Cap 301, Laws of Kenya.

19. In regard to costs, the same are in this tribunal’s discretion under section 12(1) (k) of Cap 301 but always follow the event unless for good reasons otherwise ordered. I have no reason to deny the tenant costs.

20. In conclusion therefore, the final orders which commend to me in this case are as follows:-(i)The landlord, his servants, agents, employees or proxies are hereby restrained from evicting the tenant from Ilade Oil Petrol Station in Embu or interfering with his business, 3 washing bay slots, two parking slots and upstairs office space or in any other way adversely dealing with the same without adhering to the provisions of the Landlord and Tenant (Shops, toilets and Catering Establishments) Act, cap 301, Laws of Kenya.(ii)The OCS Embu Police Station shall ensure that the said orders are complied with.(iii)Costs of the complaint and application assessed at Kshs 25,000/- are awarded to the tenant against the landlord who is authorized to offset the same against the rent account if not paid within thirty (30) days hereof.It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 17TH DAY OF NOVEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Feisal/Tenant present in personNo appearance for the Respondent