[2021] KEBPRT 340 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 173 OF 2019 (NAKURU)

BINA WHOLESALLERS..........................................TENANTS/APPLICANTS

WEST COMMERCIALS

MENENGAI SPICES

VERSUS

BARINGO UNITED COMPANY LTD..............LANDLORD/RESPONDENT

RULING

1. By a motion dated 3rd December 2019, the Applicant in material part is seeking for leave to file/lodge a Reference out of time under section 6(1) and 9(3) of Cap. 301, Laws of Kenya.

2. The Application is supported by the Applicant’s advocate’s affidavit of even date wherein it is deposed that sometime in July 2019, the Respondent issued them with a notice to terminate tenancy for the reason that it wanted to demolish the building where the Applicants’ business premises are situated in order to put up a modern building. The notices are marked KDG 1(a) (b) and (c ).

3. The applicants instructed M/S Sheth & Wathigo advocates to write back to the Respondent indicating that they did not intend to comply with the terms of the notice issued and lodge a Reference before the Tribunal.

4. On 23rd July 2019, the said advocates wrote letters of objection marked KDG 2(a) (b) and (c).

5. According to the Applicant’s advocate, the References were immediately prepared but instead of lodging the same, an unnamed office clerk immediately filed away the file alongside the unfiled references marked KDG 3(a), (b) and (c).

6. The Applicants’ failure to file a reference is blamed on pure inadvertence and excusable mistake of their advocates.

7. According to the Applicants, they have a constitutional right to access justice and that the advocates excusable mistake should not be visited upon the litigants.

8. The Applicants have been always ready and willing to have the Reference lodged save for the excusable mistake of counsel and they stand to suffer irreparable loss and prejudice should the Respondent be allowed to proceed with execution of the termination notice.

9. According to the Applicants, there is no real prejudice that shall be occasioned to the Respondent and that the application has been brought without undue delay and is in the wider interest of justice that the application be allowed.

10. The Landlord/Respondent filed a notice of preliminary objection to the effect that the application and the entire suit is defective, frivolous, incompetent and an abuse of court process.

11. It is the Respondent’s case that this Tribunal has no jurisdiction to hear and entertain the application and suit herein.

12. The Respondent also filed a replying affidavit sworn by Laremasubet Micah K. Kiptui on 27th February 2021 confirming that the Applicants were tenants in its premises known as Nakuru Municipality Block 5/114 until 1st November 2019 when the termination notices lapsed.

13. The Applicants did not file any References until one month after the termination notices took effect and there was no longer any landlord/tenant relationship and the Applicants ought to surrender vacant possession.

14. It is the Respondent’s case that the name of the purported clerk who filed away the unfiled references is not disclosed neither is there an affidavit by the said person to confirm the averments.

15. The Respondent’s accuse the applicant’s and their advocates of laxity and lack of commitment which has caused it a lot of prejudice by holding it in suspense at their whims.

16. According to the Respondent, the case before court belongs to the Applicants and not the advocates and that a litigant must at all times check with his or her advocate on the progress of his or her case and insist on compliance with statutory timelines.

17. The Respondent deposes at paragraph 12 of the replying affidavit that there is demonstration on the part of the Applicants that they followed up with their case to ensure that a Reference was filed within the stipulated guidelines and that failure to comply for a whole three months is a mistake which cannot be forgiven.

18. According to the Respondent, the Applicants are indolent and disentitled to the orders sought as no good reason has been advanced.

19. The Respondent depose that it will suffer great prejudice as it has contracted someone to commence construction of new building, secured extension of the building plans and have approved plans from the county Government marked LMKK. The contractor according to the Respondent may sue them for breach of contract.

20. On 2nd June 2021, directions were issued to dispose the application by way of written submissions. Both parties filed their respective submissions which I have considered in this ruling.

21. Having gone through the pleadings, my duty is to determine whether or not to allow the application for extension of time. Secondly, I am required to determine who is liable to pay costs of the application.

22. In so doing, I am required to exercise a discretion which must be done judiciously as opposed to capriciously.

23. In so doing, I shall seek guidance from superior courts on how the said discretion is exercised as well as the provisions of Cap. 301, Laws of Kenya.

24. Section 6(1) of Cap. 301, Laws of Kenya provides as follows:-

“A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice, may it before the date upon which such notice is to take effect, refer the matter to a Tribunal, where upon such notice shall be of no effect until, and subject to the determination of the reference by the Tribunal, provided that a Tribunal may for sufficient reason and on such conditions as it may think fit, permit such a reference notwithstanding that the receiving party has not complied with any of the requirements of this section”.

25. It is therefore clear from the proviso to the foregoing legal provision that this Tribunal has power to extend time for filing a reference notwithstanding expiry of the period limited for doing so.

26. The Applicants’ blame their failure to file the reference on excusable mistake or inadvertence on the part of their advocates. They have annexed documents which include letter of objection and references prepared pursuant to their instructions to their said advocates.

27. One Kisila Daniel Gor, an advocate in the firm of Sheth & Wathigo Advocates swore the affidavit in support of the application at the risk of the firm being blamed for professional negligence.

28. I do not think any lawyer would take such a gamble or risk if the information contained in the said affidavit was not true and I have no reason to doubt his honesty in this regard.

29. Moreover, the deponent being an advocate of the High Court of Kenya knows the consequences of swearing a false oath and this fortes my belief that what is deposed to is the truth. I do not require another affidavit by the firm’s clerk to confirm what the advocate has stated on oath.

30. In this regard, I am fortified by the decision in the case of Belida Murai & 6 others – vs- Amos Wainaina (1978) KLR in which madan J.A (as he then was ) defined what constitutes a mistake as follows:-

“A mistake is a mistake, it is no less a mistake because it is an unfortunate step. It is no less pardonable because it is committed by senior counsel.

Though in the case of Junior counsel court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been done by a lawyer of experience who ought to know better.The court may not condone it but ought certainty to do whatever is necessary to rectify if the interest of justice so dictate (emphasis added)

31. In the case of Philip Chemwolo & another –vs- Augustine Kubede (1982-88) KAR 1036 at pg 1040 ApalooJ.A ( as he then was) stated as follows:

“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit”.

32. In view of the foregoing decisions and considering that the prejudice likely to be suffered by the Applicants far outweigh that which is bound to be suffered by the Respondent, I am of the firm view that the firm view that the Applicants have given sufficient grounds upon which this Tribunal should exercise the discretion granted by section 6 of Cap. 301 in their favour.

33. In the premises, I make the following orders:-

(i) That leave be and is hereby granted to the Applicants herein to file a reference against the Landlord’s notice of termination of tenancy dated 26th June 2019 within the next fourteen (14) days hereof failing which the leave shall lapse.

(ii) That the Landlord’s notice to terminate tenancy dated 26th June 2019 shall be of no effect until the determination of the proposed reference.

(iii) That costs of the application be to the Respondent in any event.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 19TH DAY OF AUGUST2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Kiptoon for the Landlord/Respondent

Miss Mwangi holding brief for Mr. Mureithi for Applicants.