[2021] KEBPRT 487 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 1347 OF 2019 (NAIROBI)

ANDERSON MBAKA................................................. TENANT/ APPLICANT

VERSUS

JANE KISELI..................................................... LANDLORD/RESPONDENT

RULING

1. By a motion dated 19/6/2020, the Applicant is seeking that the order dated 11th January, 2019 in Tribunal case no. 03/2019 (MACHAKOS) be set aside.

2. He further seeks that pending hearing and determination of the application, this Tribunal direct an officer/inspector to inspect the detained tools of trade in the subject premises and make a report.

3. The Applicant contends that the Respondent unlawfully evicted him from the suit premises and continues to lock him out and to detain his tools of trade without good cause.

4. The Application is supported by the Applicant’s affidavit sworn on 19th June, 2020 which does not exhibit the impugned order.

5. The Applicant contends that he was not served with the notice of motion pursuant to which his eviction order was issued. His tools of trade seized during the eviction process were not sold and were detained by the Respondent in the suit premises.

6. The Applicant contends that the impugned orders are non existent and/or fraudulently obtained as he tried to locate the file from the Tribunal’s Registry in vain.

7. Prior to the application at had there was a chamber summons dated 17th December, 2029 vide BPRT NO.03 of 2019 (MACHAKOS) in which the Respondent herein sought for restraining orders against the Applicant from interfering with business outlets known as JANE KISELI’s GENERAL STALLS, MLOLONGO.

8. The Respondent also sought and was granted an order on 11th January, 2019 for vacant possession of the premises by eviction of the Tenant/Respondent.

9. The Tenant (Applicant herein) was ordered to pay the outstanding rent arrears of Kshs.286,000/- as at December, 2018 and in default, the Tenant/Respondent’s properties be sold or auctioned in part recovery thereof. See annexure JK1 attached to the replying affidavit of the Respondent sworn on 24th February 2020.

10. It is the Respondent’s case that in view of the pendency of BPRT NO. 03 of 2019, this case is an abuse of court process and ought to be struck out.

11. The orders issued in BPRT NO.03 of 2019 in the Respondent’s view having not been varied, reviewed and/or set aside are still valid and the Applicant ought to have appealed and not file a fresh case.

12. It is the Respondent’s case that she was allowed by this Tribunal to break into the Applicant’s premises in the presence of O.C.S MLOLONGO POLICE STATION and take possession thereof.

13. The application was canvassed through written submissions which the Applicant’s counsel filed on 19th April, 2021 while the Respondent’s counsel filed on 27th April, 2021.

14. The Applicant’s counsel submits that the ex-parte orders made in Tribunal case no. 03 of 2019 should be set aside under order 10 Rule 1 of the civil Procedure rules which grants such powers to the court.

15. The basis of the application is that the Applicant was not served with the application pursuant to which the impugned order was given and he came to learn of it when he was served with a replying affidavit filed herein.

16. The applicant’s counsel submits that no affidavit of service was attached to the said replying affidavit. The Applicant’s counsel has submitted on issues not pleaded in the application before me and I will therefore ignore the materials introduced irregularly through counsel’s submissions.

17. The Applicant’s counsel submits that his client was condemned unheard and that there was sufficient cause to set aside the said order.

18. The Applicant’s counsel contends that the Respondent was still in possession of the Applicant’s tools of trade.

19. On the other hand the Respondent’s counsel submits that the current application is misconceived in that no application to set aside the orders made in TRIBUNAL CASE NO. 03/2019 (MACHAKOS) has even been served and no appeal against the said orders made.

20. The said orders were still valid and in force and the current application has been made in the wrong file instead of BPRT No. 03/2019 (MACHAKOS).

21. No evidence of alleged missing file has been tendered before this Tribunal by the Applicant.

22. The Respondent’s counsel frowns upon the approach taken by the Applicant’s counsel to introduce matters not pleaded through submissions.

23. No application for reconstruction of alleged missing file has been exhibited and the current application is therefore an abuse of court process and ought to be struck out with costs.

24. It is the Respondent’s case that the Applicant has not met the legal threshold for setting aside orders as the said Applicant contends that the same are non-existent.

25. I have considered submissions by both counsels as well as the pleadings filed and wish to observe as follows:-

(a) The orders sought to be set aside were not made in the present case and cannot obviously be set aside through separate proceedings in line with the Civil Procedure Act & Rules made thereunder.

(b) The orders issued in BPRT NO.03/2019 have not been reviewed, varied or set aside on appeal or by this court.

(c) The issues raised by the Applicant in regards to the order sought to be set aside can only be canvassed in the matter in which the said order was made.

(d) There is no evidence that the court file in respect of BPRT NO. 03/2019 (MACHAKOS) is missing or lost and even if it was not available, the reasons ought to be used in applying for reconstruction thereof.

(e) The evidence sought to be introduced by the Applicant on alleged missing file through submissions is irregularly and unprocedrally on record.

(f) The Application is misconceived and an abuse of court process.

26. In conclusion therefore, I hold that the application dated 19/6/2020 is improperly before this court and is hereby dismissed with costs to the Respondent.

It is so ordered.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

DATED, SIGNED & DELIVERED THIS 21ST DAY OF MAY 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Miss Murigu holding brief for Karanja for Tenant

Mr. Maranga for the Respondent