Zipporah Wanjiru Kimani t/a Urban Phones Accessories & Urban Electricals & Electricity v Tiriki Electronics Limited t/a Joseph Muchoki Mugo & Nile Real Appraisers (Ea) Limited [2021] KEBPRT 184 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 300  OF 2021 (NAIROBI)

ZIPPORAH WANJIRU KIMANI T/A URBAN PHONES ACCESSORIES

& URBAN ELECTRICALS & ELECTRICITY....................................APPLICANT/TENANT

VERSUS

TIRIKI ELECTRONICS LIMITED T/A

JOSEPH MUCHOKI MUGO....................................................LANDLORD/RESPONDENT

NILE REAL APPRAISERS (EA) LIMITED..................................AGENT/RESPONDENT

RULING

1.  By a motion dated 30th March 2021, the Tenant/applicant moved this Tribunal seeking various orders.  Prayers 1 and 2 were granted ex-parte pending hearing and determination of the application.

2.  Prayer 3 is seeking for an injunction to restrain the Landlord and the agent from denying the tenant access, removing any goods on the demised premises, harassing, distressing for rent, letting or offering for rent and an order to remove the padlocks and any impediments placed on the door and allow the tenant quiet and peaceful possession of Shop no. F 116, 117, 118, 119 and 120 situated on L.R. NO. 209/1413/21 Junction Trade Centre, Accra Road Nairobi (hereinafter called the demised premises).

3.  The application is supported by the applicant’s affidavit sworn on 30th March 2021.

4.  In summary, the applicant’s case is that he is a tenant of the 1st Respondent in the demised premises paying a monthly rent of Kshs.40,000/-.

5.  On 21st December 2020 up to 4th February 2021, the Landlord closed the demised premises although the tenant had been paying rent when due.

6.  On 26th March 2021, the tenant received information that the demised premises had been broken into and electronic goods were being removed and being thrown  outside.

7.  The incident was reported to Kamukunji Police Station vide OB No. 39/26/03/2021.

8.  The premises were locked using the Respondents’ padlocks and the doors were welded denying the tenant access with some of her electronic goods and tools of trade inside.

9.  It is the tenant’s case that the said acts are unlawful requiring this Tribunal’s intervention.  Photographs showing the closure of the premises together with electronic conversations on the issue are annexed to the supporting affidavit.

10. A replying affidavit sworn by Edward Mwangi Muritu who is a director of the 2nd Respondent on 12th May 2021 opposing the application.

11. It is the Respondents’ case that in December 2020, the tenant closed and locked the premises and stopped paying rent and started looking for somebody to sublet the premises.

12. The Respondents claim that the tenant did not take out a trading licence for the year 2021 as he had already closed the business which explains why it is not annexed.

13. As at March 2021, the rent arrears had accumulated to Kshs.166,000. 00 and that on 22/3/2021, the tenant deposited a cheque of Kshs.130,000/- into 1st Respondent’s account after being told to remove her items to give way  for another tenant.

14. On 26th March 2021, it is alleged that the tenant removed her goods after being called by the deponent and the premises were secured.

15. The premises were let out to “Executive special” on 1st April 2021 and on 23rd April 2021 police officers visited the business premises with a court order claiming that the respondents had broken into the premises and stolen goods.

16. All rent payments were made through direct bank deposits into the landlord’s account at Family Bank.

17. The tenant filed a further affidavit sworn on 25th May 2021 in which she denies being in rent arrears in respect of the suit premises as at 26th March 2021.

18. The tenant denies having voluntarily vacated from the suit premises and has annexed WhatsApp conversation with the 2nd Respondent’s employee on the illegal breakage into the demised premises on 26th March 2021.

19. By the time the Respondents allege to have let out the premises to a third party, the tenant was still in occupation and there was a court order in place restraining such action.

20. The ex-parte tribunal orders were enforced and a return made to that effect by OCS, Kamukunji Police Station and the tenant is in possession of the demised premises.

21. The tenant has denied being a rent defaulter blaming the landlord and agent for failure to reconcile accounts.

22. The matter was directed to be disposed of by way of written submissions and both parties filed their respective submissions which I have read and considered.

23. Having analysed the pleadings and the submissions, I am called upon to determine whether to allow or deny the application.

24. In determining the foregoing application, I shall be guided by the principles espoused in Giella – vs- Cassman Brown & Co. Ltd (1973) EA 358.

25. Having observed the photographs and WhatsApp conversations between the applicant and one Herman Mbaria, I have come to the irresistible conclusion that the suit premises were not closed by the applicant on his own volition.

26. It is inconceivable that a normal human being would close his/her business, report the matter to police and finally file suit against a landlord who is innocent.  I do not believe the Respondents narrative and I refuse to buy it.

27. Secondly, the tenant could not have been owing large rent arrears by the time she came to the Tribunal in view of the acknowledgment of a payment of Kshs.130,000/- on 22/3/2021.

28. No evidence has been tendered to show that another tenant ever occupied the demised premises as alleged by the Respondents and there is no allegation made that anybody was evicted pursuant to the ex-parte orders issued herein.

29. In view of the foregoing analysis, I am convinced beyond any peradventure that the tenant/applicant has brought herself within the principles for granting of an injunction.

30. I therefore proceed to allow the application in terms of prayers 3 and 4 as follows:-

(a) That pending the hearing and determination of the reference, a temporary injunction be and is hereby issued restraining the landlord and the agent, their servants and any other person claiming through them from evicting, harassing, letting out or offering the demised premises to third parties or in any other way interfering with the tenant’s quiet and peaceful occupation thereof being shops no. F,116, 117, 118,119 and 120 on first floor of L.R. NO. 209/1413/21 Junction Trade Centre, Accra Road Nairobi.

(b) That the OCS, Kamukunji Police Station do ensure compliance with order (a) above.

(c) That the tenant shall continue paying rent to the landlord as and when the same falls due and payable.

(d) Any dispute on accrued rent arrears shall be determined at the hearing of the main reference.

(e) Costs of the application are  granted to the tenant.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 9TH DAY OF SEPTEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

IN THE PRESENCE OF

KANGATA FOR THE LANDLORD

ONGEGU FOR THE TENANT