Dalcom Kenya Limited v Francis C Maritim & Moran Auctioneers (Tribunal Case E205 of 2021) [2021] KEBPRT 60 (KLR) (25 November 2021) (Ruling)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO E205 OF 2021 (NAIROBI)

DALCOM KENYA LIMITED............................................................APPLICANT

VERSUS

FRANCIS C. MARITIM..........................................................1^ST RESPONDENT

MORAN AUCTIONEERS.....................................................2^ND RESPONDENT

RULING

1. The Tenant’s/Applicant’s notice of motion application dated 14^th June 2021 seeks orders of injunction restraining the Respondents from distressing or evicting the Tenant from the suit premises pending the hearing of the application and further seeks a stay of execution of any distress pursuant to instruction given by counsel for the Landlord to the 2^nd Respondent vide their letter of 3^rd June 2021, pending the hearing and determination of the application.  Although the application is seeking orders pending the hearing of the application, I will treat the same as having intended to have the orders granted pending the hearing of the reference to the Tribunal by the Tenant.

2. The application is supported by the affidavit of David Kiarie which I summarize as follows;

a. That the tenancy between the parties herein is a controlled tenancy.

b. That since the outbreak of covid 19, the Tenant has faced hardship in the payment of rent.

c. That the Tenant has accumulated rent arrears of Kshs 420,000/- and not Kshs 520,000/- as claimed by the Landlord.

d. That the Tenant is ready and willing to pay the said rent arrears but requests that there be set a repayment plan for it.

e. That the Tenant is in the business of selling speed governors which business has been greatly affected by covid – 19.

f. That the business of the Tenant is regulated by NTSA which while it closed down its operations, no longer carried out motor vehicle inspection leading to a crippling of the Tenant’s business.

g. That the Tenant’s goods proclaimed by the 2^nd Respondent are the Tenant’s tools of trade which if carted away would cause NTSA to cancel the Tenant’s licence to operate the business of speed limiter supply.

h. That the arrears of Kshs 420,000/- will be paid in full albeit within an agreeable schedule and therefore the court ought to preserve the Plaintiffs (sic) business.

3. The application is opposed.  The 1^st Respondent has filed a replying affidavit sworn by himself on 6^th July 2021 which I summarize as follows;

a. That the Tenant/Applicant does not deny that it has defaulted in the payment of rent and is in rent arrears.

b. That the Tenant alleges that it is ready to make a settlement proposal on the payment of arrears.

c. That the only contention by the Tenant is that the distress is illegal.

d. That the Landlord has filed a separate application for leave to distress for rent.

e. That the Tenant has refused to execute a tenancy agreement and has occupied extra premises which was not leased to him.

f. That the Tenant has threatened harm and even visit upon the Landlord/1^st Respondent who has reported the threats to the Directorate of Criminal Investigations.

4. The only issue for determination in this application is whether the Tenant is entitled to the orders sought in its application dated 14^th June 2021.

5. The Tenant/Applicant has admitted to be in rent arrears of Kshs 420,000/-. Considering the rent payable per month is Kshs 50,000/- this would mean the Tenant is in arrears of rent for a period of over eight months.  I do not think that the Tenant would in those circumstances be entitled to an order of injunction against the Landlord.

6. In the case of Julius Mogaka Gekonde T/A E-Smart Technical College Vs Ouru Power Limited and Joseph O Nyachoti T/A Minimaz Auctioneers, the court in dealing with a similar scenario stated;

74 – “I find that once the Plaintiff has acknowledged that he is indeed in arrears of rent, it means that he is in breach of the most critical term of their tenancy agreement and being a defaulting party, he cannot be seen to approach the court for an order of injunction which is an equitable relief/remedy only available to parties who come to court with clean hands.”

75 – “I am not convinced that the Applicant/Plaintiff has established that he has a prima facie case against the Defendants with high chances of success due to his default of rent.  The principles for the grant of orders of interim injunction were well stated in the case of Giella Vs Cassman Brown & Co Ltd [1973] EA 358.”

7. Apart from admitting to being in rent arrears, the Tenant has stated that it is willing to pay the same albeit within an agreeable schedule at the Landlord’s convenience.  I have gone through the Tenant’s affidavit and I have not found any concrete proposal as to the liquidation of the rent arrears.  The letter by counsel for the Tenant dated 27^th May 2021 does not give any definite proposals as to the payment of rent. 

8. At paragraph 6 of the said letter, it is stated;

“In the premises, we hope out client’s plea for an amicable way of regularizing their rent payment is acceptable and further to regularize the accounts regarding the amounts owed.  Our client shall continue to pay the rent for the current month onwards at the agreed rate.” I do not find this paragraph to constitute a concrete proposal on the payment of the rent arrears owed by the Tenant. 

9. The Tenants have not demonstrated that it has a prima facie case against the Landlord.  A prima facie case, it has been held, is a case in which on the material presented the Court/Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.  (see the case of Mrao & 2 Others [2003] KLR 125.)

10. The Tenant in the circumstances has not met the threshold for the grant of the order of injunction sought in his application and the same is declined.

11. The Tenant has also sought stay of distress for the reason that the 2^nd Respondent has proclaimed its goods yet no leave has been granted so to do as by law required.

a. The Tenant has admitted to being in rent arrears as at the time its goods were proclaimed by the 2^nd Respondent.

b. The Landlord’s right to levy distress for rent is found in section 3 of Cap 293, the Distress for Rent Act which is in the following terms;

“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrear 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.”

c. It is clear from the above provision that for the Landlord’s right of distress to accrue, there must be rent in arrears.  The Tenant in the present case having admitted to rent arrears, the Landlord’s right to levy distress for the admitted arrears crystalized.  The Landlord was therefore perfectly within his rights to levy distress against the Tenant.

d. Did the Landlord require leave to levy distress against the Tenant “as by law provided” as suggested by the Tenant?  The answer to this question is in the negative.  While dealing with this question, the High Court in the case of Embu HCCA No 7A of 2016, Joseph Nthumbi Kamnishi Vs Asha Akumu Juma stated as follows;

34 – I have perused the Act but I find no provision to the effect that such permission be sought.

35 – I find that the Appellant had no obligation to seek permission from the Tribunal to levy distress.  The fact that the tenancy is controlled does not mean that the Landlord applies to the Tribunal to levy distress.  Distress is a right the Landlord is entitled to for recovery of rent.  If the Tenant wishes, he/she could file a reference to the Tribunal for orders in objection of distress.

12. In view of the above finding by the honourable Judge, I do find that the Landlord in this case did not require any leave or permission from the Tribunal before levying distress for rent that was admittedly owing from the Tenant.  I further find that the Tenant/Applicant has not demonstrated that the proclamation by the 2^nd Respondent was in any manner illegal.

13. Consequently, I do find that the Tenant’s application dated 14^th June 2021 lacks merit and the same is dismissed with costs to the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 25^TH DAY OF NOVEMBER, 2021 IN THE PRESENCE OF THE LANDLORD AND IN THE ABSENCE OF THE COUNSEL FOR THE TENANT AND THE TENANT.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL