[2022] KEBPRT 197 (KLR)

Ambiyo v Tough Hide Limited & another (Tribunal Case E248 of 2021) [2022] KEBPRT 197 (KLR) (Civ) (13 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 197 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E248 of 2021

Gakuhi Chege, Vice Chair

July 13, 2022

Between

Sellah Andera Ambiyo

Applicant

and

Tough Hide Limited

1st Respondent

Gamar Investments

2nd Respondent

Ruling

1. The tenant/applicant is principally seeking for an order of review, setting aside and/or variation of the judgment and orders of 11th February 2022. The other prayers are not relevant as the same were intended to be made prior to hearing and determination of the application. I shall therefore only address prayer 3 of the application.

2. According to the tenant, the court delivered judgment without her submissions on account of her counsel’s failure to file the same despite having full instructions and facilitation required. It is the tenant’s case that the mistake of counsel should not be visited upon her.

3. The tenant filed an affidavit sworn on 31st March 2022 in support of her motion of even date. The tenant deposes that she gave receipts to her counsel but the same were not annexed as a result of which the court condemned her as a tenant who does not discharge her duties and issued adverse orders against her. She states that given the chance, she will file receipts to show that indeed she pays rent and that she was willing to pay any balance upon reconciliation of accounts.

4. The application is opposed through the Respondent’s grounds of opposition dated 25th April 2022. It is the Respondent’s case that there has been inordinate and unexplained delay in filing the application as judgment was rendered on 11th November 2021. Secondly, there is no error or omission on the court record that would entitle the tenant to a review of the judgment. Finally, the application is attached on the ground that it is an affront to the rule of law, is incompetent and a bar to effective administration of justice.

5. The application was ordered to be canvassed by way of written submissions and both parties complied. I shall consider the submissions together with the issues for determination.

6. I am now required to determine the following issues based on the pleadings:-a.Whether the tenant is entitled to the reliefs sought in the application dated 31st March 2022. b.Who is liable to pay costs?

7. The application is brought under section 12(1) (i) of Cap. 301, Laws of Kenya which grants this Tribunal the power to vary or rescind any order made by it under the provisions of the Act. The power to do so is discretionary and like every other discretion ought to be exercised judicially. It is not to be exercised capriciously or whimsically. A party seeking the exercise of such power must place before the Tribunal sufficient material upon which it can be exercised in his favour.

8. The tenant’s main ground for seeking the orders set out in the application is that her advocate on record previously failed to file submissions and rent payment receipts as a result of which adverse orders were made against her. She has annexed to the supporting affidavit four (4) deposit slips i.e Kshs.15,000/- paid on 5/5/2021, Kshs.10,000/- paid on 11/6/2021, Kshs.30,000/- paid on 23/9/2021 and Kshs.40,000/- paid on 1/2/2022. The last two payments were made after judgment was delivered on 11th November 2021.

9. At paragraph 27 of the judgment, I made the following observations:-“27. I have looked at the rent payment receipts attached to the tenant’s further affidavit and note that she has paid Kshs.25,000/- in the year 2021 as monthly rent out of the expected Kshs.177,600/-. The explanation given is that she was involved in a road accident in which she lost her son. She has continued to occupy the business premises and is doing business therein without paying rent. This is a state of affairs no court of equity can contenance”.

10. The tenant has not annexed any other receipts for payments made before the said judgment which were allegedly given to her former advocate and not presented to court. It is therefore clear that none exists and there is no basis for review or variation of the court judgment. I agree with counsel for the Respondents that the tenant has not brought herself within the principles of granting a review espoused in the case of National Bank of Kenya Limited – vs- Ndungu Njau (1997) eKLR at page 17.

11. Counsel for the tenant has submitted on the principles of granting an injunction. I have already held that the said prayer does not fall for determination as it was expressed to be granted pending determination of the application. In any case the same is Res Judicata having been determined by the judgment delivered on 11th November 2021.

12. I do not agree with the tenant’s counsel’s submission that the tenant is entitled to an order for setting aside the judgment which was entered on the merits of her case. All the materials presented before the Tribunal were considered and the only avenue that was available to the tenant was to appeal the decision.

13. The tenant’s application is also predicated upon her counsel’s failure to file submissions. I have been referred to the court of appeal decision in the case of Deniel Toroitich Arap Moi -vs Mwangi Stephen Muriithi & Another (2014) eKLR where it was held that submissions cannot take the place of evidence. Submissions are generally the parties marketing language each side endeavouring to convince the court that it had a better case than the adverse party. Case are decided on the evidence presented before court.

14. The tenant has not pointed out what would have changed had her counsel presented submissions before the impugned judgment. I have noted that all the evidence presented before the Tribunal was considered and I doubt that the presence of her submissions would have changed the decision. I therefore reject the said argument.

15. As costs are in the court’s discretion and always follow the event unless for good reasons otherwise ordered, I shall award costs to the Respondents

16. In the premises, the final orders that commend to me are:-i.The application dated 31st March 2022 is hereby dismissed with costs.ii.The tenant shall pay costs of Kshs.10,000/- to the Respondents in respect thereof.iii.This file is ordered closed upon issuance of a certificate of costs to the Respondents.

RULING DATED, SIGNED AND DELIVERED THIS 13TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Owino for the LandlordKamau for the Tenant