Topride Driving School Institute Limited v Waiyaki Way Shopping Center Limited & 2 others [2024] KEBPRT 314 (KLR)

Topride Driving School Institute Limited v Waiyaki Way Shopping Center Limited & 2 others (Tribunal Case E909 of 2023) [2024] KEBPRT 314 (KLR) (18 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 314 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E909 of 2023

M Makori, Member

January 18, 2024

Between

Topride Driving School Institute Limited

Applicant

and

Waiyaki Way Shopping Center Limited

1st Respondent

Chabrin Agencies Limited

2nd Respondent

Edward M. Wairagu t/a Trade Wide Auctioneers

3rd Respondent

Ruling

1. The Tenant/Applicant filed a Notice of Motion application dated 15/9/2023 together with a reference dated on the 15/9/2023. The Tenant/Applicant contended that their occupation of the subject property had been disrupted by the Respondent and as thus they shouldn’t be compelled to pay full Rent.

2. The Respondents filed a Replying Affidavit dated 14/11/ 2023 and opposed vehemently the application and the reference. It was the Respondent’s contention that no cogent reasons had been tabled as to why the Tenant/Applicant had not paid rent arrears.

3. That upon thorough perusal of the pleadings and submissions by parties, the single most issue for determination is whether the Respondent’s right to distress has accrued.

4. Before delving into the issue I wish to note that Section 4(1) of Cap 301 provides that no tenancy shall be terminated, or no term or condition, or right or service enjoyed by the tenant shall be altered otherwise than in accordance with the provisions of the Act.

5. The Act further provides for the grounds on which the Landlord may seek to terminate the tenancy in Section 7. The grounds stated under this provision and which are applicable herein include; -i.that the tenant has defaulted in paying rent for a period of two months after such rent has become due or payable or has persistently delayed in paying rent which has become due or payable;ii.that the tenant has committed other substantial breaches of his obligations under the tenancy, or for any other reason connected with the tenant’s use or management of the premises comprised in the tenancy; andiii.that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises;

6. The parties entered into a Tenancy Agreement dated 28/1/2022 where the Tenant/Applicant was to pay rent of Kshs 260,000/= for period commencing 1/3/2022 to 31/2/2023, Kshs 286,000/= for period commencing on 1/3/2023 to 31/2/2025 and Kshs 314,600/= for period commencing 1/3/2025 to expiry of the lease.

7. That upon nonpayment of Rent arrears by the Applicant/Tenant, the Respondents decided to levy distress over the suit property. The right to levy distress is reserved under section 3 of the Distress for Rent Act, Cap 293 of the Laws of Kenya, which provides; -“subject to the provisions of this Act and having any rent or rent service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the Common Law of England in a similar case.”

8. In seeking to make the appropriate orders in view of the foregoing, I am guided by section 12(1)(e) ofCap 301 which grants the Tribunal power; -“To make orders upon such terms and conditions as it thinks fit for the recovery of possession and for the payment of arrears of rent and mesne profits which orders may be applicable to any person whether or not he is a Tenant, being at any material time in occupation of the premises comprised in a controlled tenancy.”

9. That it is with no doubt in my mind that Applicant/Tenant is in arrears. The amount in arrears is stipulated in the Proclamation Notice dated 07/09/2023. Vide a letter dated 13/05/2023 the Tenant/Applicant sought to have the rent reduced (which letter is yet to be responded to by the Respondent).

10. The Respondent subject to following the right procedure are entitled to distress for rent owing from the Applicant/Tenant. Without paying rent in full and additionally admitting to have some arrears, the Applicant/Tenant approaches this court for orders against the Respondents.

11. The Applicant/Tenant alluded to have shared some notes with Respondents and which claims are vehemently refuted by the Respondents. The rule is clear and as provided in Section 107 of the Evidence Act that whoever alleges must prove.

12. In absence of evidence that indeed the Respondents had been notified of the effects of the uncompleted works, I am not persuaded that there existed a justifiable cause for non-payment of rent by the Tenant/Applicant.

13. Before concluding this ruling, I wish to adopt what the Superior court stated in the case ofSamuel Kipkori Ngeno & Another – vs- Local Authorities Pension Trust (Registered Trustees) & Another (2013) eKLR at paragraphs 9 and 12 as follows: -“9. A tenant’s first and main obligation is to pay rent as and when it becomes due, for the Landlord has the right to an income from his investment….”“12The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is underserving the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principle obligation of paying rent as and when it becomes due”.

14. In the upshot and based on the foregoing the Tribunal find that the application and reference by the Tenant is not merited and makes the following orders; -i.The Applicant’s Reference and Notice of Motion Application dated 15/09/2023 is hereby dismissed.ii.In exercise my discretion I grant the applicant 30 days from today within which to pay any outstanding arrears and/or vacate the premises failure to which the Respondents shall be at liberty to levy for distress.iii.Each party shall bear its costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JANUARY, 2024HON. MIKE MAKORI (MR.)MEMBER18. 01. 2024Delivered in the presence of Mrs. Sagini holding brief for Mr. Onenga for the tenantIn the absence of the Respondent