[2025] KEBPRT 235 (KLR)

Bux v Yusuf t/a Ibrahim's Cafe (Tribunal Case E029 of 2024) [2025] KEBPRT 235 (KLR) (Civ) (28 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 235 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E029 of 2024

P Kitur, Member

March 28, 2025

Between

Mehjabeen A Bux

Landlord

and

Saida Ibrahim Yusuf t/a Ibrahim's Cafe

Tenant

Ruling

A. Parties 1. Mehjabeen A. Bux is the landlord of the premises located at Plot No. XXVII/11 & 12 Mombasa Island (hereinafter referred to as ‘the suit premises’).

2. The firm of N.A Ali & Company Advocates represents the Landlord.

3. The Tenant known as Said Ibrahim Yusuf is a businessperson operating a café in the name of Ibrahim’s Café within the suit premises as a tenant of the Landlord.

4. The firm of Sitonik Advocates represents the Tenant.

B. The Dispute Background 5. The Landlord filed a Reference dated 19th January 2024 with this Tribunal, seeking several orders. He requested that the tenancy agreement between him and the Tenant concerning the suit premises be declared terminated, effective 1st January 2024, following the issuance and lapse of a termination notice.

6. In the Reference, the Landlord alleged that he had served the Tenant with a termination notice dated 9th October 2023, which the Tenant did not oppose. Based on this, the Landlord sought a declaration that the tenancy had been effectively terminated. Additionally, he sought an order granting him possession of the premises and directing the Tenant to vacate, failing which eviction be carried out. He also sought an award of mesne profits at the rate of Kshs. 19,475/= per month from January 2024 until possession was obtained, as well as a directive for police assistance to enforce compliance.

7. On 29th February 2024, the matter came up for hearing, counsel for the Landlord was present while the Tenant’s counsel was absent. The Landlord’s counsel sought to have the Complaint herein allowed as prayed as the Tenant had not opposed it. The Complaint was allowed as prayed.

8. The Tenant, in response, filed several Applications, including one dated 26th February 2024 which was dismissed for non – attendance and the present one dated 21st January 2025 under a Certificate of Urgency. In this application, the Tenant sought a temporary injunction to restrain the Landlord and his agents from evicting him from the premises and from admitting another tenant to the shop on the suit premises. He also sought to set aside ex parte orders issued on 29th February 2024, which had allowed the Landlord's complaint as prayed. Furthermore, the Tenant requested leave to file a response to the Reference out of time.

9. On 23rd January 2025, the Tribunal issued temporary injunction orders, restraining the Landlord and his agents from carrying out any eviction. The Tribunal further directed that the Tenant’s application be served upon the Respondent for an inter partes hearing scheduled for 3rd February 2025.

10. Subsequently, on 27th January 2025, the Tenant filed another application seeking the Tribunal to vary its earlier orders. He requested the inclusion of a directive for the Officer Commanding Station (OCS) of Mombasa Central Police Station to ensure compliance with the issued orders.

11. In response to these applications, the Landlord filed a Replying Affidavit sworn on 31st January 2025. The Landlord maintained that the eviction was conducted lawfully and in full adherence to legal procedures. He asserted that the Tenant had been duly served with the termination notice and given ample opportunity to respond.

12. The Tenant, however, filed a Supplementary Affidavit sworn on 26th February 2025, challenging the validity of the termination notice. He argued that he had consistently paid rent, which nullified any claims of rent arrears. Additionally, he stated that he had never been served with the court pleadings that resulted in the issuance of eviction orders.

13. Following these developments, the Tribunal directed both parties to file their respective written submissions, which they complied. Consequently, this matter is now scheduled for a Ruling on the Tenant’s Application dated 21st January 2025.

C. List Of Issues for Determination 14. Whether the Tenant is entitled to the reliefs sought in the Application dated 21st January 2025.

D. Analysis And Findings 15. In determining whether the Tenant's Application is merited, it is imperative to investigate all the circumstances surrounding this case from the start, the validity of the Termination Notice all the way to the present including findings of the Inspection Report by the Tribunal.

16. The Landlord contends that the termination notice dated 9th October 2023 was properly served on the Tenant, as required under Section 4(6) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 (the Act). Proper service of notices is a critical procedural requirement for the termination of tenancies under the Act, ensuring that the Tenant has adequate notice to challenge or comply with the notice.

17. In the instant suit, the Tribunal has carefully reviewed the evidence of service presented by the landlord. such as the email correspondence from the Tenants advocate dated 19th November 2023 refusing to comply with the notice and finds that the Landlord has provided sufficient proof that the termination notice was duly served and compliant with the statutory provisions. Furthermore, no credible evidence has been submitted by the Tenant to rebut the Landlord's assertions regarding service. Therefore, the Tribunal finds that service of the termination notice was proper and valid.

18. The crux of the tenants application is the injunction restraining the Landlord from evicting them or letting the shop to another tenant as well as setting aside of the ex parte orders. The Tenant argues that the ex parte orders issued on 29th February 2025 should be set aside on the grounds that he was not served with court pleadings leading to the issuance of those orders.

19. However, as established from the affidavit of service sworn on 9th February 2024 by Adbdul Swamad Said court process server, the Tribunal finds that service of the Reference and hearing notice was proper and in compliance with the applicable law. Further, the Tenant did not provide compelling evidence to demonstrate any procedural irregularities in the issuance of the ex parte orders.

20. Order 12 Rule 7 of the Civil Procedure Rules 2010 permits the setting aside of ex parte orders where sufficient cause is demonstrated.

21. The Supreme Court of India in the case of Parimal v Veena 2011) 3 SCC 545 observed that:-“sufficient cause"is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously"

22. In considering applications to set aside ex parte orders, the court must remain mindful of its duty to ensure that substantive justice is delivered to all parties involved. It is essential to assess whether setting aside the ex parte orders would prejudice the Respondent, and whether denying the Applicant an opportunity to be heard on the basis of technicalities would cause undue harm or injustice.

23. The Court is further guided by the case of Shah v Mbogo [1967] EA166 at page 123B where the court stated as follows:-‘this discretion to set aside an ex-parte judgement is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.’

24. In this case, the Tenant has failed to show sufficient cause to warrant the setting aside of the orders. The evidence before this Tribunal shows that the termination notice was duly served in accordance with the law. Despite being afforded the opportunity to oppose the notice by filing a reference, the Tenant did not take any action within the prescribed time by filing a Reference in opposition to the Notice. This inaction effectively left the Notice unopposed.

25. Additionally, even after being served with the Landlord's Complaint dated 19th January 2024, the Tenant once again failed to file a response or challenge the claims therein. The Tenant's repeated failure to respond highlights a pattern of negligence and demonstrates that they sat on their rights, disregarding the procedural remedies available to them. Such conduct not only undermines the integrity of their application but also indicates a lack of diligence in safeguarding their interests.

26. The Tribunal finds that the Tenant's mere assertion of consistent rent payments does not address their prolonged inaction or provide a valid basis for setting aside the ex parte orders. By failing to exercise their legal rights in a timely manner, the Tenant has forfeited the opportunity to contest the Landlord's claims effectively. This neglect and indifference to the procedural framework further weaken their application and demonstrate an absence of sufficient cause to justify the relief sought. As such, the Tribunal finds no basis for granting the Tenant’s request to set aside the ex parte Orders.

27. Additionally, since the granting of the Orders sought to be stayed in the present Application, there has been a lapse of time which may have resulted in a change of the circumstances. Indeed, the Tribunal conducted a site visit and an Inspection Report dated 19th February 2025 duly filed. It is telling that the Report’s findings were as follows, ‘The premises are currently vacant and undergoing repairs and renovations under the Landlord’s custody.’

28. In light of the foregoing analysis, I will make the following orders:-

E. Ordersi.The Tenant’s Application dated 21st January 2025 is dismissed in its entirety.ii.For avoidance of doubt any Orders granted after 11th March 2024 stand discharged.iii.The orders issued on 29th February 2024 shall remain in force.iv.Costs are awarded to the Landlord assessed at Kshs. 20,000/=.v.The file is marked as closed.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon P. Kitur this 28th day of March 2025 in the absence of the parties.