Ongeri v Muigai & another (Tribunal Case 1004 of 2020)  KEBPRT 759 (KLR) (Civ) (13 July 2022) (Ruling)
Neutral citation:  KEBPRT 759 (KLR)
Republic of Kenya
Tribunal Case 1004 of 2020
Gakuhi Chege, Vice Chair
July 13, 2022
Alfayo Ombasa Ongeri
Levis Ndiba Muigai
Nairuti & Associates
1.Before me is an application dated 6th September 2021 in which the Respondents seek for setting aside, discharge or variation of the orders issued on 16th December 2020 favour of the tenant on the grounds that the tenant has not been paying rent to the 1st Respondent who continued to suffer loss.
2.The tenant is accused of misusing the orders obtained on the said date unjustifiably thereby causing prejudice to the landlord as the latter cannot levy distress due to the said orders. As such it was fair and just that the orders sought in the application be granted.
3.On the 16th December 2020, this Tribunal issued ex-parte orders restraining the 1st Respondent/Landlord from evicting, harassing, insulting, threatening and interfering with the quiet occupation of the tenant until the application is heard and determined. The matter was set for directions on 7th January 2021.
4.On 7th January 2021, the matter came up before Hon. A. Lorot, Chief Magistrate who was then acting Chairperson of the Tribunal and the issue of non-payment of rent was raised by the landlord’s counsel when both parties were ordered to file statements of rent account. The matter was fixed for mention on 10/2/2021 when it was again adjourned to 9th March 2021 at the request of the tenant’s counsel to enable the tenant to comply with the order of filing the statement of rent account.
5.On 9th March 2021, the matter came up before me and parties were directed to comply with previous orders with the Respondents being directed to file a response to the application dated 16th December 2020. The matter was adjourned for hearing on 7th April 2021.
6.On 7th April 2021, the parties were absent and they were directed to fix a fresh date at the Registry.
7.On 21st May 2021, the matter came up for hearing of an ex-parte application dated 19th May 2021 which was directed to be heard on the date scheduled by the Registry on 27th May 2021. On that date both parties were absence and again parties were directed to fix a fresh date at the Registry.
8.On 6th September 2021, the landlord filed the application under consideration and the same was considered ex-parte and directed to be served for hearing on 19th October 2021.
9.On 19th October 2021, the matter came up before Hon. Cyprian Mugambi, Chairperson when the tenant’s counsel sought for time to reconcile accounts and sought for a mention date. The matter was fixed for mention on 16th November 2021. On that date, there was no appearance by both parties and a date was to be fixed at the Registry.
10.The matter was subsequently fixed for hearing on 25th February 2022 when there was no appearance on the part of the tenant and there having been no affidavit of service, the matter was adjourned to 15th March 2022.
11.On 15th March 2022, the tenant’s counsel sought for more time to take instructions on the way forward. The landlord’s counsel submitted that the tenant had not been paying rent. The matter was slated for mention on 31st March 2022.
12.On 31st March 2022, the matter came up and it was agreed by consent that the application dated 6th September 2021 be heard on 13th April 2022 orally. The tenant was granted 7 days to respond thereto.
13.On 13th April 2022, the matter came up for hearing and parties agreed to file submissions on both applications dated 16th December 2020 and 6th September 2021. The matter was therefore set for mention to confirm compliance on 12th May 2022.
14.On 12th May 2022, the matter came up in court and both parties had filed submissions. I shall consider the submissions together with the law applicable.
15.The issues for determination in this matter are:-a.Whether the tenant is entitled to the reliefs sought in the application dated 16th December 2020.b.Whether the landlord is entitled to the reliefs sought in the application dated 6th September 2021.c.Who is liable to pay costs of the suit?
16.In his application dated 16th December 2020, the tenant sought for injunction to restrain the landlord and his agent from interfering with his quiet enjoyment and lawful possession of the suit premises being L.R NO. 257/268, Equity Building House no. 3E, 3rd Floor Mwiki – Kasarani Road.
17.What provoked the tenant’s reference was a notice dated 7th November 2020 by the 2nd Respondent which notified the tenant that his tenancy would be terminated on 30th December 2020.
18.As a result, the tenant filed a complaint dated 16th December 2020 complaining that the landlord unlawfully issued him with a one month notice to vacate by 30th December 2020.
19.On 8th January 2021, the 2nd Respondent filed a statement of rent account in compliance with the Tribunal orders of 7th January 2021 showing that the tenant was in arrears of Kshs.123,900/-.
20.On 8th January 2021, the tenant filed a further affidavit in which he alludes to closure of the business premises from 14th August 2020 to 11th September 2020 as per annexures ‘J1A & J1B’.
21.On 3rd November 2020, 2nd Respondent via an sms text message ordered the tenant to vacate the suit premises and directed him not to make any more through the account or any other means.
22.The tenant has annexed previous rent payment receipts and Mpesa statement as well as deposit slip to prove that he had been paying rent through the 2nd Respondent.
23.Given all the materials presented before the Tribunal, I find and hold that the Respondents were hellbent to evict the tenant from the suit premises and that he faced imminent danger of such eviction. He had cause to fear and I agree with counsel for the tenant that he was entitled to a quia timet injunction in line with the principles espoused in the case of Industrial Development Bank Limited cited in his submissions.
24.It would appear that the real issue in controversy as appreciated from the word go by the Tribunal is how much rent is owing by the tenant (if at all) to the landlord. I have noted that the landlord’s agent filed a rent account statement showing a sum of Kshs.437,800/- to be owing as at March 2022. I have noted that the last rent payment in the said statement was posted on 2nd November 2020.
25.I note that the tenant filed a statement of rent account through his further affidavit sworn on 8th July 2021. I have examined the said statement against the landlord’s agent’s statement filed through the advocates’ letter by M/S Kaburu Miriti & Co. Advocates of 29th March 2022 and all the rent payments by the tenant are captured therein. The said statement is clear on how the sum of Kshs.437,800/- was arrived at. The tenant has not controverted it by tendering evidence of any further payments.
26.The tenant appears to have stopped paying rent after being granted restraining orders of 16th December 2020 as his last rent payment was made on 2nd November 2020. Nowhere did the court order him to stop payment of rent and failure by the tenant to pay rent amounts to abuse of court process for which the orders are liable to be discharged to enable the landlord enforce rent payment.
27.A tenant who comes to a court of equity is enjoined to demonstrate that he has fulfilled all obligations imposed upon him under the tenancy contract. The tenant herein having failed to pay rent is disentitled to the continued enjoyment of the interim orders.
28.In the premises, the following are the final orders under section 12(4) of Cap. 301 in respect of the reference and applications dated 16th December 2020 and 6th September 2021:-i.The tenant’s reference in regard to the unlawful notice to vacate dated 7th November 2020 is allowed and the notice declared to be of no legal effect.ii.The tenant’s application dated 16th December 2020 is dismissed on account of failure to pay rent after the interim orders were granted in his favour.iii.The Respondent’s application dated 6th September 2021 is allowed and the orders given on 16th December 2020 are hereby discharged and/or vacated.iv.Each party shall bear own costs of the proceedings.v.For avoidance of doubt the landlord is entitled to use any lawful means to recover rent arrears owing by the tenant in respect of the suit premises.It is so ordered.
RULING DATED, SIGNED & DELIVERED THIS 13TH DAY OF JULY 2022 VIRTUALLY.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Azure for the TenantNo appearance for the Landlord