[2022] KEBPRT 62 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E045 OF 2021 (MOMBASA)

AHMED SIRJAT NOOR.......................................APPLICANT/APPLICANT

VERSUS

HBM POWER & TECHNOLOGY LTD........ RESPONDENT/LANDLORD

RULING

1. The Applicant instituted his complaint by way of a plaint dated 31st August 2021 and contemporaneously filed a motion of even date seeking stay of the notice to terminate tenancy dated 26th July 2021 or any interference with his quiet enjoyment of shop no. 2 in Mombasa Block XL/16 pending hearing and determination of this suit.

2. In the plaint aforesaid, the Applicant seeks:-

(a) That the honourable court be pleased to issue permanent injunction staying the defendant’s notice to terminate tenancy dated 26th July 2021 or in any other manner interfering with the plaintiff’s quiet enjoyment of shop no. 2 on Mombasa Block XL/16.

(b) Costs of this suit.

(c) Interest on (b) above at court’s rates from date of judgment and payment in full.

(d) Any other relief that this honourable court may deem fit to grant.

3. The Respondent filed a preliminary objection dated 27th September 2021 on the following grounds:-

“1. The application and the entire suit offends section 6 of the landlord and Tenant (Shops, Hotels and Catering Establishments) Act.

2. The suit is repugnant to the provisions of the law, incompetent, an exercise in futility which amounts to wastage of the precious Tribunal time and ought to be struck out”.

4. The preliminary objection was directed to be disposed of by way of written submissions and both parties complied.

5. The Landlord’s counsel submits that section 6 of Cap. 301 requires a receiving party to oppose a tenancy notice and to refer the matter to the Tribunal by way of filing a reference.

6. Section 10 of the Act stipulates that a tenancy notice takes effect where no reference is filed and that Rules 3,5 and 12 of the Regulations made under the Act provide for the forms used in references before the Tribunal.

7. It is submitted that the tenant failed to notify the landlord within appropriate time of his unwillingness to comply with termination notice issued to him neither did he file a reference as required under section 6 of Cap. 301.

8. The landlord submits that the pleadings filed by the tenant are based on a procedure not provided under the Regulations and relies on the cases of Saheb – vs- Hassanalley (1981) eKLR & Nandlal Jivraj Shah & 2 Others – vs- Kingfisher Properties Limited (2015) eKLR to buttress the point that there is no reference before the Tribunal and that the relationship of landlord and tenant has ceased to exist. In absence of a reference, it is submitted that the Tribunal cannot invoke its jurisdiction under section 9, Cap 301.

9. As the tenant did not invoke the procedure under Cap. 301, it is the landlord’s submission that the Tribunal cannot invoke its powers to determine the issues in this case. It is argued that the Tribunal cannot disregard the practice and procedure provided under the Act.

10. The preliminary objection is opposed by the tenant who invokes Article 159(2) (d) of the constitution of Kenya, 2010 which provides that:-

“In exercising judicial authority the courts and tribunals shall be guided by the following principles:-

(a)……………….

(b)………………

(c )………………

(d) Justice shall be administered without undue regard to procedural technicalities.

11. The tenant cites the case of Kenya Ports Authority – vs- Kenya Power & Lighting Co. Ltd (2021) eKLR and James Muriithi Ngotho & 4 Others – vs- Judicial Service Commission (2021) eKLR to demonstrate what the constitution meant by procedural technicalities.

12. The tenant further submits that this Tribunal has the requisite jurisdiction to deal with the matter as the tenancy is controlled within the meaning and interpretation of cap. 301, Laws of Kenya.

13. Citing D.T. Dobie & Co. (k) Ltd – VS- Muchina (1982) KLR 1 and Madison Insurance Co. Ltd -vs- Augustine Kamanda Gitau Civil Appeal No. 123 of 2018 on the power to strike out a matter, counsel for the tenant submits that this is not a case for striking out.

14. I have considered the provisions of Article 159(2) (d) of the constitution of Kenya and I am convinced that it was meant to ensure that courts of law shall always determine matters based on substantive justice rather than technicalities of procedure.

15. I have found useful guidance in the two cases cited by counsel for the tenant and in particular the decision in James Muriithi Ngotho & 4 Others – vs- Judicial Service Commission (2012) eKLR where it was observed as follows:-

“We all know that what is normally regarded as procedural technicalities would be in the nature of procedural lapses that do not go to the root of the matter under consideration. They would for example include lapses like using the wrong mode of moving the court for certain reliefs e.g filing a notice of motion to seek leave to commence judicial review proceedings instead of a chamber summons as prescribed under order 53 rule 1, Civil Procedure Rules or citing the wrong provisions of the law while the substance of the application shows clearly that the law cited is not applicable to the subject of litigation among others.

I am fortified in this finding by the definition of the word ‘procedure’ and technicality since it is from a combination of these two words that the phrase procedural technicality must have been coined from. The word procedure is defined in the Black’s law Dictionary, 9th Edition page 1323 as “a specific method or course of action. The judicial role or manner for carrying on a civil law suit or criminal prosecution - also terms of procedure”.

16. Given the foregoing definition, I am satisfied that failure by the tenant to file a reference in the format prescribed under Cap.301 is not fatal and does not warrant me to exercise the draconian powers of striking out the pleadings. In any event, I am not told what prejudice the landlord will suffer if this Tribunal was to consider the pleadings filed herein as a reference or complaint contemplated under Cap. 301, laws of Kenya.

17. I am fortified in this holding by the decision in the case of Essaji – vs- Solanki (1968) EA 218 where it was held as follows:-

“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights”.

18. This principle was restated in the case of Trust Bank Ltd – vs- Amalo company Ltd (2002) eKLR where the court of appeal held that the principle which guides the court in the administration of justice when adjudicating on any dispute is that where possible disputes should be heard on their own merit”.

19. Flowing from the above analysis, the preliminary objection herein has not merit and is dismissed with costs.

20. The matter shall be fixed for hearing on the merits.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF JANUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Abdulahi for the Landlord

No appearance for the Tenant

Order:

Mention on 14th February 2022 for further directions

Mention notice to issue.