Automated Summary
Key Facts
The tenant (Richard Otinga Anzere) and landlord (Abdul Mwaserah) dispute rent arrears and eviction. The tenant claimed he paid Kshs 469,000/- to the landlord's agent but failed to prove these payments due to the agent's death and lack of receipts. The court found the tenant owed Kshs 591,000/- as of July 31, 2022, including monthly accruals of Kshs 30,000/-. The interim orders preventing eviction were discharged, and the landlord was granted vacant possession of the premises. The tenant was ordered to pay Kshs 30,000/- in costs.
Issues
- Whether the tenant is entitled to the reliefs sought in the application dated November 16, 2021.
- Who is liable to pay costs?
- Whether the landlord is entitled to vacant possession of the suit premises.
- Whether the tenant owes rent arrears to the landlord and if so how much?
Holdings
- The tenant is disentitled to an injunction due to unpaid rent.
- The tenant is in rent arrears of Kshs 591,000 as of July 31, 2022.
- The landlord is entitled to vacant possession of the premises.
- The tenant is ordered to pay Kshs 30,000 in costs to the respondents.
Remedies
- The OCS, Makupa Police Station shall provide security to the auctioneer during enforcement of the eviction order.
- The tenant is in rent arrears of Kshs 591,000/- as at July 31, 2022 and the landlord is entitled to use lawful means to recover the same forthwith.
- The tenant shall pay Kshs 30,000/- as costs to the respondents herein.
- The tenant is disentitled to the equitable remedy of injunction and the interim orders granted on November 18, 2021 are hereby discharged/set aside.
- The landlord is entitled to vacant possession of the suit premises and the tenant is liable to be evicted from the suit premises being L R No Mombasa Block IX/393, Mombasa County through a licensed Auctioneer unless he vacates therefrom with immediate effect.
Legal Principles
- The court discharged the interim orders granted to the tenant, holding that a tenant must come to equity with clean hands and must do equity. The tenant's failure to pay rent disentitled him to the equitable remedy of an injunction.
- The court ruled that costs follow the event, awarding the landlord costs as the tenant failed to meet their obligations. The tenant was ordered to pay Kshs 30,000 as costs to the respondents.
Precedent Name
Samuel Kipkori Ngeno & Another vs Local Authorities Pension Fund (Registered Trustees) & Another
Cited Statute
- Business Premises Rent Act (Cap 301) Laws of Kenya
- Evidence Act (Cap 80) Laws of Kenya
Judge Name
Gakuhu Chege
Passage Text
- the final orders that commend to me are:- i. The tenant is in rent arrears of Kshs 591,000/- as at July 31, 2022 and the landlord is entitled to use lawful means to recover the same forthwith.
- He who comes to equity must come with clean hands and must do equity. The tenant has not paid rent and has therefore not done equity.
- I shall grant him an order for vacant possession under section 7(1) (b) as read with section 12 (1) (e) of Cap 301, Laws of Kenya.