[2021] KEBPRT 57 (KLR)
The tribunal found that the tenants were not served with the landlord's application dated 20th July 2020, resulting in ex-parte orders being issued without affording them a right to be heard. This violated the principles of natural justice. Since the tenants had already filed references opposing the notice to...
Source-derived case information.
- Citation
- [2021] KEBPRT 57 (KLR)
- Parties
- Landlord: Antony Maina Mbutua t/a Spear Supermarket; Tenant: Tabitha Wanjiku; Tenant: Esther Njeri; Tenant: Cecilia Wangari; Tenant: Anthony Wagura
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 123 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside or Review Ex Parte Orders
- Outcome
- application allowed; ex-parte orders set aside; references to be heard inter partes
- Legal Topics
- Landlord Tenant Disputes, Termination of Tenancy, Service of Process, Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Maina Mbutua t/a Spear Supermarket
Landlord
Tabitha Wanjiku
Tenant
Esther Njeri
Tenant
Cecilia Wangari
Tenant
Anthony Wagura
Tenant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside or Review Ex Parte Orders
Legal Issues
- 1 Whether the tenants were properly served with the landlord's application dated 20th July 2020 before ex-parte orders were issued.
- 2 Whether the ex-parte orders granted to the landlord on 29th December 2020 should be set aside or reviewed.
- 3 Whether the tenants' references opposing the notice to terminate tenancy should be heard inter partes before any eviction orders are made.
Ratio Decidendi
The tribunal found that the tenants were not served with the landlord's application dated 20th July 2020, resulting in ex-parte orders being issued without affording them a right to be heard. This violated the principles of natural justice. Since the tenants had already filed references opposing the notice to terminate their tenancies, those references should be determined inter partes before any eviction or further adverse orders are made. The tribunal therefore set aside the ex-parte orders and directed that the tenants' references be heard on a priority basis, consolidating them with related cases for expedited hearing.
Court Disposition
application allowed; ex-parte orders set aside; references to be heard inter partes
Orders
- The application dated 5th January 2021 is allowed.
- The ex-parte orders granted to the landlord on 29th December 2020 are set aside.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 123 OF 2020 (NAKURU)
ANTONY MAINA MBUTUA T/A
SPEAR SUPERMARKET...............................LANDLORD
VERSUS
TABITHA WANJIKU.............................................TENANT
ESTHER NJERI.....................................................TENANT
CECILIA WANGARI............................................TENANT
ANTHONY WAGURA..........................................TENANT
RULING
1. The Tenant’s/Applicant’s notice of motion dated 5th January 2021 seeks the following orders;
a. Spent.
b. Spent.
c.That this honourable Tribunal be pleased to set aside or review the orders granted to the Landlord/Respondent on 29th December 2020.
d. That the Tenant’s reference filed on 24th March 2020 against the Landlord’s notice to terminate tenancy issued on 6th March 2020 he set down for inter partes hearing.
e. That the OCPD and OCS Nyahururu Police Station do and is hereby directed to enforce the orders.
f. Costs.
2. The application is based on the grounds set forth on the face of the application and the affidavit of Anthony Wagura. The affidavit and the grounds relied herein may be summarized as follows;
a. That the Applicants herein filed references against the Landlord’s notice to terminate the tenancies.
b. That the application by the Landlord dated 20th July 2020 was never served upon the Applicants.
c. That the Applicants are long serving Tenants of the Landlord/Respondent and solely depend on the business on the suit premises for their livelihood.
d. That the Tenants are not in breach of any conditions of their tenancy.
e.That it is only fair that the references be set down for hearing inter- partes.
3. The application is opposed. The Landlord/Respondent has sworn a replying affidavit which I proceed to summarize as follows;
a. That the Respondent followed due process in his quest to terminate the Applicant’s tenancies.
b. That the notice to terminate the tenancies was issued under the provisions of Cap 301 of the Laws of Kenya.
c. That some Tenants have already complied with the notice to vacate.
4. I have gone through the affidavit of the Respondent and it does not deny the complaint by the Applicants that they were never served with the application dated 20th July 2020. It is therefore clear that the application proceeded ex-parte. The Applicants had a right to be heard before the orders were issued.
5. In view of the fact that the Applicants had already filed references opposing the notice to terminate those references ought to be determined before any application for eviction can be entertained.
6. I will in the circumstances allow the application dated 5th January 2021 and further direct the references filed by the Applicants to be set down for hearing on a priority basis. In order to facilitate the expedited hearing of the references, I order that this matter be heard together with BPRT case numbers 54/2020, 35/2020, 56/2020 and 57/2020.
7. The references will be heard on 25th January 2021. Counsel for the Tenants to be served.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 3RD DAY OF DECEMBER, 2021 IN THE PRESENCE OF ANTHONY, THE LANDLORD AND IN THE ABSENCE OF THE TENANTS AND COUNSEL.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL