Automated Summary
Key Facts
The Business Premises Rent Tribunal ruled on Case No. 583 of 2020 (Nairobi) regarding a dispute between Joseph Hilary Mwangi (Landlord) and Jane Wambui Njau (Tenant). The Landlord served a Notice of Termination on 6th March 2020 for non-payment of rent (5 months arrears, KShs 50,000.00), which the Tenant acknowledged but later claimed she was not served. The Court found the notice was properly served and the Tenant did not challenge it as required, terminating the tenancy. The Tenant also failed to pay rent arrears (KShs 160,000.00 as at February 2021) despite court orders, and abandoned the premises. The Court ordered the Tenant to vacate within 60 days and upheld the Landlord's application.
Issues
- The court determined if the Tenant was properly served with the Notice of Termination of Tenancy under the Landlord and Tenant Act, as the Tenant claimed she was not served.
- The court assessed if the Landlord met the conditions to obtain eviction and rent recovery orders, considering the Tenant's non-compliance and failure to clear rent arrears.
- The court examined if the doctrine of functus officio applies, preventing the court from hearing the current case due to a prior ruling in case No. 12 of 2019.
Holdings
- The court held that the doctrine of functus officio applies to Case No. 12 of 2019, which was dismissed by the court on 28th October 2019. The decision in that case is final, so the court cannot revisit the same matter, and the current application is not barred by this doctrine.
- The court determined that the Tenant was properly served with the Notice of Termination of Tenancy as required by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The Tenant acknowledged receipt by signing the notice and failed to provide evidence to challenge the service or the notice, and did not challenge the notice within the prescribed time. Therefore, the tenancy was terminated as per the notice.
- The court found that the Landlord is entitled to the orders sought because the Tenant has not cleared the outstanding rent arrears (KShs. 160,000.00 as of February 2021), has abandoned the premises, and has failed to comply with court orders, including the order to clear rent arrears and file submissions. The Landlord established a prima facie case for injunctive relief.
Remedies
The court ordered the tenant to vacate the premises within 60 days. If the tenant fails to vacate, the landlord may reclaim the premises through break in with the assistance of the Officer Commanding Station Kenol.
Legal Principles
- The court applied the doctrine of functus officio, which holds that a court's decision is final and cannot be varied once perfected, barring clerical errors or a change of mind before perfection, as explained in Election Petitions Nos. 3, 4 & 5 Raila Odinga & Others vs IEBC & Others.
- The court applied the three conditions for granting an interlocutory injunction: (1) a prima facie case with probability of success, (2) irreparable harm not compensable by damages, and (3) balance of convenience favoring the injunction.
- The court applied the equitable principle of 'clean hands', requiring a party seeking equity to fulfill all outstanding obligations before insisting on their rights, as established in Kyangaro v. Kenya Commercial Bank Ltd.
Precedent Name
- Giella v Cassman Brown and Co. Ltd
- Election Petitions Nos. 3, 4 and 5 Raila Odinga and Others vs IEBC and Others
- Kyangaro v. Kenya Commercial Bank Ltd and another
- Jersey Evening Post Limited vs Al Thani
Cited Statute
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
Judge Name
Andrew Muma
Passage Text
- 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.
- I find that the Landlord has established the threshold set out in the above case to warrant this Court to grant him injunctive orders.