[2022] KEBPRT 753 (KLR)

Abdullahi v Hassan (Tribunal Case 909 of 2020) [2022] KEBPRT 753 (KLR) (22 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 753 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 909 of 2020

Cyprian Mugambi Nguthari, Chair

September 22, 2022

Between

Mohamed Nuur Abdullahi

Tenant

and

Al-Sawaw Mohammed Abdulqader A Hassan

Landlord

Ruling

Introduction 1. The landlord’s/applicant’s notice of motion dated December 1, 2021 seeks for an order that this tribunal be pleased to review and set aside the ruling delivered in this matter on November 1, 2021. The application is supported by the affidavit of Al Sawe Mohammed Abdulqader and also based on the grounds set forth on the face of the application.

2. The application is opposed by the tenant who has filed a replying affidavit and submissions.

The Landlord’s Depositions 3. The landlord’s affidavit in support of the application may be summarized as follows;a.That he is the registered proprietor of the suit premises.b.That in its ruling of November 1, 2021, the tribunal found that the respondent was indeed a tenant.c.That the chairman relied on the fact that the respondent had provided evidence of payment of rent to the previous owner and the fact that the respondent was allegedly in possession.d.That the respondent has never made any rent payment to the applicant and he is not in possession or occupation as the chairman presumed.e.That there is no tenancy agreement whatsoever between the respondent and the applicant.f.That the applicant has discovered new information that the respondent is not a Kenyan citizen but a Somali citizen and does not reside in the country.g.That the respondent is not within the jurisdiction.h.That this important and new evidence was not previously available to the applicant even after exercise of due diligence.i.That the applicant discovered the new information when his advocates attempted to serve court orders on the respondent and were duly informed of the citizenship status of the respondent.j.That the application has been brought without undue delay.k.That the respondent has approached the tribunal with unclean hands, he is not a Kenyan and he does not have a work permit.l.That the respondent is undertaking business illegally within the country making a mockery of our justice system.m.That maintaining the ruling sought to be reviewed would be entertaining an illegality.

The Tenant’s/Respondent’s Depositions 4. The tenant’s/respondent’s replying affidavit sworn on January 26, 2022 may be summarized as follows;a.That he is a British citizen, born in Mogadishu Somalia contrary to the landlord’s claim.b.That he has been a tenant on shop Nos A06, A07, A014 and A015 before the applicant bought it from the previous owner.c.That Farah Sheikh Abdi who held the shops in trust for the respondent was a tenant of the previous owner of the suit premises.d.That the landlord herein purchased the suit property with the full knowledge that there were tenants in occupation.e.That the landlord’s notice dated August 26, 2020 addressed to all tenants including the respondent herein required the tenants to vacate the property from August 26, 2020. f.That the respondent is in occupation of shop Nos A06, A07, A014 and A015 and the landlord continues to receive rent from the tenant. the allegation that the landlord does not know the respondent is false and an afterthought.g.That the tenant has been paying rent through the landlord’s mpesa line No 0721-558080 but the landlord has never issued any receipts.h.That the fact that the respondent is a foreigner has no bearing on the business he operates at the landlord’s premises and the allegation that the respondent is a foreigner is no legal basis to set aside the order issued by the tribunal.i.That there is no law barring foreigners from conducting business in Kenya as long as they comply with Kenyan law and further the landlord has no locus to question the respondent’s legal status in the country.j.That there is no error apparent on the face of the record and further the application by the landlord has not met the threshold for review of the orders issued on November 1, 2021. k.That the landlord’s failure to attach a copy of the order/ruling sought to be recovered is fatal to the landlord’s application.l.That there is no new and important matter that could not be produced by the landlord at the time when the ruling was delivered.m.That the issues raised on the landlord’s present application were the same ones raised in the response to the tenant’s application and the same was canvassed and a ruling given.n.That the application is incompetent and an abuse of the process of the tribunal.

Analysis and Determination 5. Section 80 of the Civil Procedure Act cap 21 of the Laws of Kenya provides as follows;"Any person who considers himself aggrieveda.By a decree or order from which an appeal is allowed by this Act but from which no appeal has been preferred orb.By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order and the court may make such orders thereon as it thinks fit."

6. Order 45 rule 1 of the Civil Procedure Rules 2010 provides as follows;"Any person considering himself aggrieveda.By a decree or order from which an appeal is allowed but from which no appeal has been preferred or,b.By a decree or order from which no appeal is hereby allowed and was from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay.”

7. The basis of the landlord’s application for review is that he is now seized with new information that the respondent/tenant is not a Kenyan citizen but a Somali citizen, does not reside in Kenya and it is factually impossible for him to be in possession of the suit premises. The other notable ground upon which the application is brought is that this information was not available to the applicant even after the exercise of due diligence and he could therefore not produce the same during the proceedings.

8. The respondent has admitted that he is not a Kenyan citizen. His affidavit evidence reveals that he is a British citizen born in Mogadishu. Would it therefore be a ground to review the tribunal’s ruling; that the tenant is not a Kenyan citizen? I do not think so. The mere fact that one is not a Kenyan cannot legally incapacitate one from carrying on business within the country. The landlord has not demonstrated how the tenant’s citizenship constitutes an illegality that affects his rights to carry out legitimate business in the country. This is a matter which if the landlord feels so strongly about, he ought to report the same to the relevant authorities.

9. Order 45 of the Civil procedure Rules lays down the jurisdiction and scope of review. The order limits the jurisdiction to the following grounds;a.Discovery of new and important matter or evidence which after due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was issued or the order made orb.On account of some mistake or error apparent on the face of the record orc.For any other sufficient reason and for whatever reason the application has to be made without unreasonable delay.

10. The landlord’s application suggests that the new and important matter he discovered and on the basis of which review orders sought to issue, is that the tenant is not a Kenyan citizen and he does not reside in the country and could therefore not factually have been in possession of the suit premises. The applicant states that he made this discovery when his advocates sought to serve a court order upon the tenant. The landlord did participate in the hearing of the application dated October 18, 2020 up to the time the ruling was delivered. The applicant herein found the tenant in the premises when he purchased the same as can be gleaned from the following paragraphs in the landlord’s affidavit sworn on June 7, 2021;"8. The applicant is one of the people who illegally sublet the units, I do not have any agreement with him and as such he does not have any legal relationship with me. His claim should be against the tenant whose sub-unit be sublet.9. I am also advised by my advocates which advice I believe to be true that since the plaintiff/applicant herein is an illegal sub-tenant of the unit he occupies he does not have any right to quiet and peaceful possession of the property…20 (a)The applicant herein was a broker who rent and sublet the shop prior to change in ownership…20 (c)The applicant failed to adhere to conditions of the lease agreement by continuing to sublet my shops at higher rates that I was renting the shops thereby jeopardizing my business."

11. I have set out the above paragraphs in the landlord’s affidavit to demonstrate that I am not convinced the citizenship of the tenant was a new and important matter discovered by the landlord after the ruling or that could not have been provided during the ruling. It is clear that the landlord knew about the tenant, if he had exercised due diligence, he would have gotten all the information he needed to use against the tenant/respondent.

12. The affidavit of the landlord sworn on December 11, 2021 does not even state the new source of the information at paragraph 11 and neither does the affidavit suggest that this source of information was not available from the very beginning. The said paragraph states;"11:I discovered the information when my advocates attempted to serve the court orders to the respondent and were duly informed of the citizenship status of the respondent.”

13. Even if I were to agree that this information is new and important, I would still not set aside the orders of the tribunal issued on November 1, 2021 for the reasons that the applicant herein has not demonstrated any illegality on the part of the tenant to warrant the gravity of the orders sought. The allegations as to the illegal nature of the applicant’s stay in Kenya have not been substantiated and it is my view that it is not for the tenant to prove his legal status but for the landlord to prove the allegations made in his application.

14. In conclusion and following from the above reasons, it is my finding that the application dated December 1, 2021 lacks merit and the same is dismissed with costs to the tenant.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 22ND DAY OF SEPTEMBER 2022HON CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNALIn the presence of Ms Mohamed for the Tenant and Ms Arunga for the Landlord.