[2024] KEBPRT 3 (KLR)

Akubu & another v Mwaniki (Tribunal Case E084 of 2023) [2024] KEBPRT 3 (KLR) (12 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 3 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E084 of 2023

Andrew Muma, Ag. Chair & J Rop, Member

January 12, 2024

Between

Howard Peter Akubu

1st Tenant

Paul Kiarie Mwega

2nd Tenant

and

Isaiah Ndung’u Mwaniki

Landlord

Ruling

Parties and their Representatives 1. The Applicants are the tenants who rented space on LR No. 13330/118 Nairobi for the business (hereinafter known as the “tenant”).

2. The Tenants are represented by the Firm of M’limbiine & Mungai Advocates.

3. The Respondent is the registered proprietor of the suit premises and therefore the Landlord to that effect.

4. The Respondent is represented by the Firm of Gatundu & Company Advocates.

Dispute Background 5. On 26th January 2023, the Tenants moved this Tribunal vide a Reference and Notice of Motion evenly dated. The Tenants sought orders restraining the Landlord from evicting them and interfering with their quiet possession of the premises after the Landlord served them with a Notice to terminate tenancy dated 5th October 2022 which was to take effect on 6th January 2023.

6. Upon hearing, the Tribunal vide a Ruling dated 1st September 2023 dismissed the Reference and Application both dated 26th January 2023 and ordered the Tenants to offset the arrears owed to the Landlord being KShs. 579,540. 00 as at August 2023 within 30 days failure to which the Landlord would be at liberty to distress, break in and take back possession of the property.

7. Subsequently, on 20th September 2023 the Tenants filed a Notice of Motion seeking orders inter alia that this Tribunal be pleased to review and/or set aside its ruling and orders issued on 1st September 2023 and all consequential processes arising therefrom, pending the hearing and determination of this application.

8. It is this application that is the subject of this Ruling.

The Tennant's Case 9. The Tenants averred that they were dissatisfied with the Tribunal’s Ruling delivered on 1st September 2023 for reasons that the Tribunal did not consider the Tenants’ Further Supplementary Affidavit dated 18th August 2023 as evidence. The Tenants further stated that filing of the Further Supplementary Affidavit dated 18th August 2023 was a consequence of leave of the Tribunal granted on diverse dates of 7th and 10th August 2023.

10. The Tenants also stated that the said Further Supplementary Affidavit contained a detailed proof of payments of rent from the year 2020 to 2023 and a summary of the rental payments.

11. It was the Tenants’ averment that the failure of this Tribunal to consider the Further Supplementary Affidavit dated 18th August 2023 has greatly prejudiced them owing to the resultant Ruling that was delivered against them.

The Landlord's Case 12. The Landlord also filed a Replying Affidavit dated 27th October 2023 sworn by Dr. Isaiah Ndungu Mwaniki. He averred that this Tribunal having made a final determination in the matter, is functus officio and lacks jurisdiction to handle the review application and therefore the said application should be dismissed with costs. Additionally, the Landlord averred that the assumption by the former tenants that the Tribunal dismissed their Reference only on the basis of rent arrears is grossly erroneous.

13. The Landlord also stated that the former tenants allege that they have filed a Further Supplementary Affidavit sworn on 18th August 2023 yet they have failed to attach a copy of the said affidavit, fees payment receipt and prior invoice. Further, that it is noteworthy from the former tenants’ own affidavits on record that their own rent tabulations clearly reveal rent arrears and the same would tally to the last coin with his tabulations even if one disregarded non-rent payment items they have sneaked in their tabulations which this Tribunal dismissed in paragraphs 22 and 25 of the ruling on the alleged costs of sewer line.

14. The Landlord ultimately stated that the Tenants’ Application dated 20th September 2023 lacks merit and it is intended to hoodwink the Tribunal and further deny the Landlord an opportunity to benefit from his investment and the same ought to be dismissed and/or struck out with costs.

Issues for Determination 15. I have given full consideration to the Tenants’ Notice of Motion Application dated 20th September 2023 and Landlord’s Replying Affidavit dated 27th October 2023.

16. In my respectful view, I find that the sole issue that falls for determination is:Whether this Tribunal should review and/or set aside its Ruling and orders delivered on 1st September 2023 and all consequential processes arising therefrom.

Analysis and Determination 17. Section 80 of the Civil Procedure Act Cap 21 provides as follows: -“Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)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 order thereon as it thinks fit.”

18. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -“1. (1)Any person considering himself aggrieved—(a)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 who 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 a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

19. In Republic v Public Procurement Administrative Review Board & 2 others [2018] e KLR it was held: -“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”

20. Further, In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR the Court of Appeal held: -“Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason ...”

21. The Tenants main basis for review is that they filed a Further Supplementary Affidavit dated 18th August 2023,The same is not in the court file neither have they attach a copy of the same together with evidence of receipt of payment. I have keenly reviewed the documents on record, I have difficulty in tracing a copy of the said Further Supplementary Affidavit. Section 107 of the Evidence Act states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The Tenants having failed to prove the existence of such Affidavit it goes without saying that the tribunal having no additional information made a conscious decision on the matters in controversy and exercised its discretion from the material on record.

Determination 22. In the upshot, the following orders shall abide:(a)The Tenants/Applicants’ Application dated 20th September 2023 is dimissed with costs assessed at KShs.10,000 in favour of the landlords.(b)The reference is marked as settled.

RULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 12TH DAY OF JANUARY 2024 IN THE PRESENCE OF MS. MOVAKI H/B FOR GITONGA FOR THE TENANT/APPLICANT AND NO APPEARANCE FOR THE RESPONDENT/LANDLORD.HON A. MUMAAG CHAIR/MEMBER, BUSINESS PREMISES RENT TRIBUNAL....................................................HON. JACKSON ROPMEMBER, BUSINESS PREMISES RENT TRIBUNAL....................................................