REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 25 OF 2021 (EMBU)
ROSE KAWIRA NJERU........TENANT/APPLICANT
VERSUS
EPHRATH GACHIE... LANDLADY/RESPONDENT
RULING
1. By a motion dated 26th March 2021, the Applicant/Tenant is seeking in pertinent part for mandatory orders of injunction against the Respondent/Landlady to rebuild the toilet and in default, she be allowed to rebuild the same and deduct the expenses from future rents.
2. The application is supported by her affidavit sworn on even date in which she deposes that the Landlady has failed to provide her with a toilet facility after it was damaged during the December 2020 rainy season.
3. The Respondent is alleged to have refused to repair the same and that she was harassing, threatening the Tenant with an intention to evict her from the suit premises.
4. The application is opposed through the Respondent’s replying affidavit sworn on 19th April 2021 in which she states that she entered into an oral lease agreement with the Tenant which was to be reduced into writing but the Applicant became uncooperative.
5. It is the Respondent’s case that although the monthly rent was Kshs.9000/-, the tenant was in arrears of Kshs.270,000/- as per the rent account statement annexed to the replying affidavit.
6. The Respondent avers that the tenant destroyed most of the fixtures and decorations in the premises and failed to pay rent to facilitate repairs.
7. She denies being in possession of the applicant’s weighing machine, machine table, chips warmer, cooking pots, chairs, utensils and small basin for weighing muguka.
8. She also denies having closed one of the leased rooms and instead alleges that the tenant built semi permanent structures which she has leased to third parties contrary to the lease agreement.
9. The Respondent contends that she has not issued any notice of termination of the tenancy to warrant the feared eviction.
10. The Respondent is therefore seeking for an order that the Applicant pays rent in arrears to facilitate repairs, demolish the illegal structures on the suit plot and cancel all sublease agreements with third parties. She also prays for damages and costs of the suit.
11. The Applicant filed a further affidavit sworn on 6th August 2021 in which she complains that the Landlady has continued to harass her with threats and insults through her son and that she locked one of the rooms and gave it to her son who is now operating a butchery with the items therein.
12. She has annexed a photograph of the “deplorable” condition of the toilet and the locked room and maintains that she is threatened with eviction through the Assistant Chief and elders.
13. She is seeking for release of the meat weighing machine, table, chips warmer, cooking pots, chairs, utensils and a small basin for weighing “Muguka”.
14. She also seeks for damages for business loss due to the Landlady closing her business.
15. I am now called upon to determine whether or not to grant the reliefs sought in the application dated 26th March 2021. Secondly, I am required to determine who is liable to pay costs of the application.
16. I have examined the affidavits sworn by both parties and note that the Tenant has not controverted the Landlady’s allegation that she is in arrears of rent in the sum of Kshs.270,000/- to date.
17. The Landlady contends that the tenant’s failure to pay rent has made it impossible for her to undertake repairs in the demised premises.
18. It is trite Law that he who comes to equity must come with clean hands. A Tenant who has not paid rent cannot run to a court of equity to seek for mandatory orders of repair of the demised premises against the Landlord.
19. In the case of Samuel Kiprkori Ngeno & Another - vs- Local Authorities Pension Trust (Registered trustees) & Another (2013) eKLR the superior court at Paragraphs 9 & 12 had the following to say:-
“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. Why would a tenant allow himself to fall into such huge arrears of rent”
“12. The 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 undeserving of the court’s discretion. The court cannot be a refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due”.
20. In the same vein, I find and hold that the Tenant is underserving of an order of injunction in this matter in absence of evidence of payment of rent alleged to be due to the Landlord.
21. In the same vein, I am unable to make any orders in favour of the Landlady in the manner sought in her replying affidavit as there is no application for the same filed by her herein.
22. In the premises, the tenant’s application dated 26th March 2021 is hereby dismissed with costs to the Respondent/Landlady.
It is so ordered.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 17TH DAY OF AUGUST 2021
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Tenant/applicant present in person
No Appearance by the Landlady/Respondent