Case ID:181922

Joseph Hilary Mwangi v Jane Wambui Njau [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 583 of 2020 (Nairobi)

Parties:

Joseph Hilary Mwangi v Jane Wambui Njau

Date Delivered:

10 Sep 2021

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Hon. Andrew Muma - Vice Chair Business Premises Rent Tribunal

Citation:

Joseph Hilary Mwangi v Jane Wambui Njau [2021] eKLR

Advocates:

Ms Muchemi for Mogani for the Landlord/Applicant

Nyabeti for the Tenant

Court Division:

Tribunal

County:

Nairobi

Advocates:

Ms Muchemi for Mogani for the Landlord/Applicant

Nyabeti for the Tenant

History Advocates:

Both Parties Represented

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 583 OF 2020 (NAIROBI)

JOSEPH HILARY MWANGI............................................LANDLORD/APPLICANT

VERSUS

JANE WAMBUI NJAU.........................................................TENANT/RESPONDENT

RULING

Parties and Their Representative

1. The Landlord/Applicant, Joseph Hilary Mwangi is the owner of Plot No. 1 Kenol, Muranga

(hereinafter referred to as the “Landlord”)

2. Learned Counsel Dola, Magani & Co. Advocates represent the Landlord.

(Email: dolamaganiadvocates@gmail.com)

3. The Respondent Jane Wambui Njau rented shop space on the suit premises.

(hereinafter referred to as the “Tenant”)

4. Learned Counsel Omwayo, Momanyi, Gichuki & Co. Advocates represent the Tenant.

The Dispute Background

5. On

9

th

June, 2020

the Landlord moved this court under a certificate for orders seeking the eviction of the Tenant from the suit premises and the recovery of rent arrears.

6. On

11

th

June 2020

the Court gave orders for the Tenant to be served with the application and issued a hearing date of

1

st

July 2020

.

7. On

23

rd

February 2021

the Landlord filed a further affidavit where he provided that the Tenant’s rent arrears are amounting to

KShs. 160,000.00

as

at February 2021,

that the Tenant closed the suit premises with a padlock in the

November 2020

and that the Court issue a further Order of break in.

8. On

9

th

March 2021

the Court issued Orders for the Tenant to clear all rent arrears in respect of the suit premises and

14 days

to reply to the Landlord’s application.

9. On

24

th

March

the Tenant filed a replying affidavit denying the Landlord’s claims and further pointed out that there is a case pending,

Tribunal case No.12 of 2019

between the parties over the same cause of action.

10. On

10

th

May 2021

the Court gave directions that the Application dated

9

th

June 2020

to be heard by way of written submissions. The submissions filing was confirmed on

22

nd

July 2021

and the matter set for ruling on

10

th

September 2021.

11. The Applications therefore coming for ruling are the Landlord’s application dated

9

th

June 2020.

Jurisdiction

12. The Jurisdiction of this tribunal is not in dispute.

The Dispute Background

13. On

6

th

March 2020

the Landlord filed a Notice of Termination of Tenancy in respect of the suit premises on the grounds that the Tenant had not paid rent for 5 months amounting to

Kshs 50,000,00.

14. On

9

th

June 2020

the Landlord filed an application in the Court seeking eviction Orders against the Tenant and payment of rent arrears. On

23 February 2021

the Landlord filed a further affidavit where he provided that the Tenant’s rent arrears are amounting to

Kshs. 160,000.00

as at

February 2021,

that the Tenant closed the suite premises with a padlock in the

November 2020

and that the Court issue a further Order of break in.

15. It is the Tenants claim through the Affidavit dated

24

th

March 2021

that she was never served with the termination notice and that she has cleared all the rent arrears.

The Claim and Defence

16. The Landlord’s case is that on the Tenant has lost all interest in operating her business at the suit premises as she locked the suit premises on

November 2020

and currently resides in Eldoret and has equally neglected to pay the outstanding rent arrears.

17. The Tenant’s case is that she was not served with the Notice of Termination of Tenancy and that she has cleared the rent arrears.

Matters Not in Dispute

18. There is no dispute that there was a Tenant and Landlord relationship governed by the

Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya

. (Controlled Tenancy).

List of Issue for Determination

19. The parties raised certain issues for determination in their submissions and the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below:

a) Whether the Tenant was issued with a Termination Notice?

b) Whether the Court is

functus officio

with regards to

case no. 12 0f 2019?

c) Whether or not the Landlord is entitled to the orders sought?

Analysis and Findings

Whether or not the Tenant was issued with a Termination Notice?

20. Termination of a controlled tenancy is provided for under

section 4 of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act.

The Section provides that;

“

Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the provisions of this Act”

21.

Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

further provides that,

“A landlord who wished to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that to the tenant in the prescribed form.”

22. On

6

th

March 2020

the Landlord issued a Notice to Terminate the Tenancy on the grounds that the Tenant had defaulted in paying rent.

Section 7(1)(b) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

provides that one of the grounds on which a Landlord may seek to terminate tenancy is where, “

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

.

” From the Notice issued by the Landlord he states that the Tenant has not been paying rent for a period of 5 months.

23.

Section 4(6) Landlord and Tenant (Shops, Hotels and Catering Establishment)

Act provides that,

“

A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case maybe

.”

24. The Tenant claims that she was not served with the said notice despite the fact that she acknowledged receipt on the notice by appending her signature. Furthermore, there is an Affidavit of service sworn by Moses O. Rumber Ojwang which clearly gives an account on the same.

25. It should be noted that the Tenant has not adduced any evidence before this Court to prove that she was not served. To that extent this Court finds that the Tenant was properly served with the Notice to Terminate the tenancy. The Tenant did not make efforts to challenge the Notice to Terminate the Tenancy as provided for in the

Act. Section 10 of the Act

which provides,

“

Where a landlord has served a notice in accordance with the requirements of Section 4 of this Act, on a tenant, and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice, or refer the matter to a Tribunal then subject to Section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy…

”

Accordingly this Court finds for all intended purposes that the tenancy is terminated

Whether the Court is

functus officio

with regard to Case no. 12 0f 2019?

26. It is the Landlord’s submission that the

case no. 12 of 2019

was dismissed by an Order of this Court dated

28

th

October 2019

and that the doctrine of

functus officio

bars this Court from varying its decision.

27. The doctrine of

functus officio

was expounded by the Supreme Court of Kenya in

Election Petitions Nos. 3, 4 & 5 Raila Odinga & Others vs IEBC & Others [2013] eklr

where the Court cited an article by Daniel Malan Pretorius in

“The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 112 SALJ 832:

“The

functus officio

doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

28. The Supreme Court also relied on the case of

Jersey Evening Post Limited vs Al Thani [2002] JLR 542 at 550

to the effect that:

“A court is funtus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the

court functus

, when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”

29. Similarly, in our case this Court gave orders with regard to

Case no. 12 of 2019

dismissing the reference and the decision of this Court in regards to that matter is final.

Whether or not the Landlord is entitled to the orders sought?

30. On

9

th

March 2021

this court made orders compelling the Tenant to clear all rent in areas with respect to the suit premises.

31. From the Landlord’s submission dated

25

th

May 2021

it is clear that despite the orders given by this Court the Tenant did not make any effort to clear the outstanding rent arrear. Furthermore, the Tenant has failed to comply with the directions of this court on several occasion as up to date she has not filed her submissions.

32. It is also clear from the Landlord’s affidavit dated

18

th

January 2021

that the Tenant has since abandoned the suit premises and shows no interest in carrying out her business in the premises.

33. The orders sought by the Landlord are equitable remedies and I am guided by the decision in

Kyangaro v. Kenya Commercial Bank ltd & another [2004] 1KLR126

as cited in

Patrick Waweru Mwangi & Another v Housing Finance Co. of Kenya Ltd [2013] eKLR

at page 145 where the Court stated;

“Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he has not done equity.”

34. Furthermore, as to the injunctive orders sought by the Landlord this Court is guided by the principles in

Giella vs Cassman Brown and Co. Ltd

where the Court set out the principles for interlocutory injunctions.

“The conditions for the grant of an interlocutory are now, I think well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury in which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

35. I find that the Landlord has established the threshold set out in the above case to warrant this Court to grant him injunctive orders.

ORDERS

For the reasons given above I order as follows that:

a) The upshot is that the Landlord’s Application dated

9

th

June 2020

and the Reference dated

10

th

June 2020

are upheld. The Notice dated

6

th

March 2020

is valid.

b) Tenant to vacate within

60 days

failure to which the Landlord can reclaim the suit premises through break in with the assistance of the Officer Commanding Station Kenol.

c) No orders as to costs.

HON. ANDREW MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING

dated, signed and delivered virtually by

Hon A. Muma

this

10

th

September 2021

in the presence of

Ms Muchemi

for

Mogani

for the

Landlord/Applicant

and

Nyabeti

for the Tenant.

HON. A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL