[2022] KEBPRT 1086 (KLR)

Abdul Karim Rashid t/a Melodica v Elimu Investments Ltd & Salimirwa Trading Co. Ltd (Tribunal Case E464 of 2016) [2022] KEBPRT 1086 (KLR) (14 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 1086 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E464 of 2016

CN Mugambi, Chair

November 14, 2022

Between

Abdul Karim Rashid t/a Melodica

Tenant

and

Elimu Investments Ltd & Salimirwa Trading Co. Ltd

Landlord

Ruling

1. The Tenant’s application dated 27. 06. 2022 seeks orders;a.That the application be heard viva voceb.That the main suit be adjourned pending the hearing and determination of the contempt proceedings before the High Court in Misc. Application No. 646 of 2019 and 733 of 2019. c.That the tenant be provided with the inspection report arising out of an inspection called out by the Tribunal or in the alternative the Tribunal conducts a fresh inspection of the subject matter premises.d.That the tenant be allowed time and access to the Tribunal documents touching on the proceedings heretofore this suit touching on the landlord/Respondent.e.That summons do issue to the persons who prepared the documents relied upon by the parties in this matter.

2. The application is supported by the affidavit of Abdulkarim Rashid and also based on the grounds on the face of the said application. It has been opposed by the affidavit of Macharia Maina. I have read both affidavits.

Issues for determination 3. The issue that arises for determination in the above application is whether the tenant/Applicant is entitled to the orders sought in his application.

Analysis and determination 4. The tenant has sought in his application that the main suit be adjourned pending the hearing and determination of contempt proceedings before the High Court, being Misc. Applications Numbers 646/201 and 733/2019. The Applicant’s reasons for making this prayer are that if this suit proceeds, the orders of the Tribunal will be inconsistent with the High Court findings or rulings, also that this Tribunal’s proceedings will be inconsistent with the judicial principle of les pendens. The tenant has stated further that interlocuroty contempt proceedings must take precedence over the proceedings of the main suit.

5. I do not agree with the Applicant that the outcome of these proceedings is likely to be inconsistent with the findings of the “higher court”. This is primarily so because what the tenant seeks in the “higher court” is the punishment of the Respondent/landlord for contempt while the landlord before the Tribunal seeks to enforce a notice to terminate tenancy. The High court and the Tribunal are/will be trying different matters and exercising clear and different jurisdictions.

6. Whereas the tenant has not applied for the stay of these proceedings and indeed has not demonstrated any orders of stay of proceedings from the “Higher court”, I also note from the tenant’s application that he had sought similar orders on 17. 1.2020 where by an application of even date, the tenant sought an order;“That pending the hearing and determination of this application, an order issues from this Honourable Court denying the Respondent audience before the Business Premises Rent Tribunal until the application for contempt now pending before the superior court is heard and determined and the contempt purged.”The Tenant’s application seeking the above prayer was dismissed on 29. 5.2020 and I do not think it is open for the tenant to apply afresh for the same orders.

7. The contempt proceedings are based on an alleged disobedience of the Tribunal’s orders. I say “alleged” because the dispute is still live in the High court and it would be presumptuous of the Tribunal in these proceedings to assume that the landlord is indeed in contempt and thereby “adjourn” the proceedings on that account as sought by the tenant. It is my view therefore that both courts can proceed simultaneously with the hearing and determination of the matters placed before them.

8. As regards the request for the availing of the inspection report, the tenant has stated that he applied for the same in 2018, the chairman of the Tribunal visited the suit premises but no report was filed. To be fair to the tenant, this particular prayer is not resjudicata as stated by the Respondent/landlord as it was not one of the prayers sought in the tenant’s application dated 17. 1.2020 and which was dismissed on 29. 5.2020. I have not seen any report filed by the chairman and I will therefore allow the tenant’s request that a fresh inspection be carried out in the presence of the parties and or their representatives within the next seven (7) days of this ruling.

9. The tenant’s request to be allowed time and access to the Tribunal documents touching on the proceedings heretofore this suit touching on the landlord is vague and fails on particularity. I think that in the course of the proceedings, the tenant is at liberty to request for any particular file that he may need for his case and appropriate orders will be made by the Tribunal. I am therefore not convinced that this prayer is for granting.

10. The tenant has also sought an order that summons do issue to the persons who prepared the documents relied upon by the parties in this matter. This matter is yet to be heard. It is not possible for the Tribunal to tell at this moment in time what witnesses the parties will be calling in support of their cases. The Tribunal cannot also tell which documents the parties will be producing in evidence and it is therefore not possible to generally issue summons to each and every maker of the documents alluded to. If the Applicant requires any witness to be summoned, then the appropriate time to make the application is during the hearing and event then, the order summoning the witness is one to be made on a document by document basis and it cannot be presumed that the Tribunal will as a matter of course allow the calling of each and every maker of each and every document. The parties herein only need to follow the rules of evidence during the hearing to block any documents that they feel do not meet the threshold of admissibility. It is also not for the Tribunal to guide in an advance fashion the manner in which the parties will be proving their cases during the hearing.

11. This matter has been pending before the Tribunal since 2016. It has been fixed for hearing on several occasions but has never kicked off. It is my view that this suit be fixed for hearing without any unnecessary delays.

12. In the final analysis, the only orders which commends itself to me and which I grant is that;a.An inspection of the suit premises will be carried out by the Tribunal and a report filed within the next seven days of this ruling date.b.That this matter be fixed for hearing on a priority basis.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14TH DAY OF NOVEMBER 2022. HON. CYPRIAN MUGAMBI - CHAIRPERSON14. 11. 2022Delivered in the presence of;Mr. Macharia for the tenantMr. Murimi for the landlordCourt: This matter will be heard on 14. 12. 2022.