[2021] KEBPRT 363 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 887 OF 2020 (NAIROBI)

ARIELLE CONSTRUCTION LIMITED......RESPONDENT

VERSUS

JACKSON MBURU KIIGI........................1ST APPLICANT

STELLA NJOKI MBURU.........................2ND APPLICANT

RULING

1. Before me is an application dated 14th April 2021 in which Jackson Mburu Kiigi and Stella Njoki Mburu are seeking for review, setting aside and or vacation of the ruling delivered on 11th February 2021 in this matter.

2. They also seek for directions as to the hearing and determination of the respondents’ application dated 4th December 2020 as well as the notice of preliminary objection and grounds of opposition dated 27th January 2021.

3. The said application is opposed through a replying affidavit sworn by Wangui Kathryn Kimani advocate sworn on 23rd April 2021.

4. The application is inter-alia brought under order 45 of the Civil Procedure rules as well as Section 1A, 1B & 3A of the Civil Procedure Act.

5. The orders sought to be reviewed were made by Hon. A. Lorot, Chief Magistrate on 11th February 2021 in his capacity as Acting Chairman of this Tribunal pursuant to an application dated 4th December 2020 which was itself an application for review of the orders of 1st December 2020 on the grounds of mistake and errors on the face of the record.

6. The Respondents filed grounds of opposition dated 27th January 2021 and a notice of preliminary objection.

7. Having considered the application in a ruling delivered by Hon. Cyprian Mugambi, Chairman, Hon. A Lorot reviewed his decision of 1st December 2020 and reinstated the application dated 6th November 2020.

8. The decision reviewed by Hon. A Lorot by his ruling of 11th February 2021 was the order striking out the application dated 6th November 2020 on the grounds of lack of jurisdiction.

9. The Applicants complain that they were not heard before the said decision was made and that the same was made without notice and or directions on hearing or taking cognizance of their pleadings filed herein.

10. They further contend that the Tribunal failed to canvas the grounds of opposition and preliminary objection filed by the Applicants before issuance of the said orders.

11. It is the Applicant’s case that they had legitimate expectation to at least obtain directions on the prosecution of the said application as well as hearing and making arguments in support of the filed pleadings.

12. According to the Applicants, the principles of natural justice concern procedural fairness and ensure that a decision is reached by an objective decision maker maintaining procedural fairness and that they were not accorded a chance to make their arguments and submissions on the pleadings filed opposing the application.

13. They further complain that the ruling delivered on 11th February 2021 was in breach of the rules of natural justice and statute in issuing reviewing orders without notice to or hearing the Applicants herein.

14. They finally argue that they are entitled to fair administrative action which has been denied by the honourable Tribunal in this matter and that they deserve protection of the law from this court.

15. On its part, the Respondent’s counsel opposes the said application as being mischievous, frivolous and a proper case of abuse of court process.

16. It is the Respondent’s contention that order 45 rule 6 of the Civil Procedure rules does not allow any review upon an order made on an application for review.

17. The Respondent contends that it will be wrong and unprocedural to call on the court to once again reconsider its own decision made on an application for review and no grounds for review have been advanced to enable this court exercise discretion in favour of the Applicant.

18. In view of the foregoing analysis, I am now called upon to determine whether or not the application should be granted.

19. In so doing, I will seek guidance of superior courts on how the review jurisdiction is exercised as well as the relevant law.

20. Under section 12(1) (i) of Cap 301, Laws of Kenya, this Tribunal has jurisdiction to vary or rescind any order made by the Tribunal under the provisions of the Act.

21. The powers given under the said section are however supposed to be exercised judiciously and not capriciously.

22. Under order 45 rule 1(1) of the Civil Procedure Rules, any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or by a decree or order which no appeal is 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 errors 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.

23. Order 45 Rule 6 provides as follows:-

“No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained.

24. It is clear beyond peradventure that this Tribunal is barred by order 45 Rule 6 of Civil Procedure Rules from exercising review jurisdiction upon a review order made pursuant to the impugned ruling delivered on 11th February 2021.

25. Secondly, the reasons given in the application are all issues of law which should form grounds of appeal and any attempt by this Tribunal to review its decision on that basis would amount to sitting on appeal against own decision. This is untenable.

26. I am fortified in holding so by the Court of appeal decision in the case of National Bank of Kenya Limited – vs- Ndungu Njau (1997) eKLR at page 4/5where it was held as follows:-

“a review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of Law. Misconstruing a statute or other provisions of law cannot be a ground for review”.

27. In the premises, I find and hold that the application dated 14th April 2021 has no merit and is hereby dismissed with costs to the Respondent.

28. The applications pending herein shall be set down for hearing on priority basis.

It is so ordered.

DATED, SIGNED & DELIVERED THIS 12TH DAY OF AUGUST 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PRESMISE RENT TRIBUNAL

In the presence of:

Otwal for the Tenant

Miss Kathyln Wangui for the Respondent

Order:

Mention on 7/9/2021 to take directions on the pending applications.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PRESMISE RENT TRIBUNAL

12/8/2021