[2022] KEBPRT 1080 (KLR)

Cause Impact Limited v Tawfiq Trust Registered Trustees & 2 others (Tribunal Case E435 of 2021) [2022] KEBPRT 1080 (KLR) (18 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 1080 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E435 of 2021

Gakuhi Chege, Vice Chair

November 18, 2022

Between

Cause Impact Limited

Tenant

and

Tawfiq Trust Registered Trustees

Landlord

and

Tysons Limited

Agent

and

Sannex Enterprises Auctioneers

Auctioneer

Ruling

1. On 24th September 2021, this Tribunal delivered a ruling by which it upheld the Respondent’s preliminary objection dated 25th August 2021 on the grounds that it did not have jurisdiction to hear and determine the dispute as the controlled tenancy between the parties came to an end after they entered into a six (6) years tenancy by dint of a letter of offer executed by them.

2. By a motion dated 2nd June 2022, the tenant applied inter-alia for review, variation or setting aside of the said ruling of 24th September 2021 and orders made on 18th November 2021.

3. On 3rd June, 2021, the Honourable chairman gave ex-parte orders restraining the Respondent from disposing and/or selling the tenant’s properties/office equipment in their custody pending hearing of the application inter-partes on 12th May 2022.

4. Through an application dated 15th June 2022, the Respondent moved this Tribunal under certificate of urgency seeking for orders that pending hearing of application dated 2nd June 2022, the ex-parte orders granted on 3rd June 2022 suo moto and award of costs be set aside on grounds set out on the face thereof and affidavit of Wycliff Ongwae sworn on 15th June 2022.

5. Upon perusal of the said application on 13th June 2022, I made the following orders:-“(a)The application is certified as urgent.(b)The orders granted on 3rd June 2022 are set aside on the grounds that they were given after concealment of material facts of the ruling in ELC Appeal No. 90 of 2021 and Milimani CMCC No. E1145/2021 and against the doctrine of res judicata.(c)The instant reference is hereby struck out with costs of Kshs. 50,000/= to the Respondent ex debito justitiae or being an abuse of court process.(d)The hearing date of 12th July 2022 is hereby vacated and file ordered closed.”

6. On 1st July 2022, the tenant moved this Tribunal under certificate of urgency through a motion dated 1st July 2022 seeking for suspension of the operation of the orders issued herein on 22nd June 2022 by the Honourable vice chairman. The tenant also sought for review, vacation or setting aside of the drastic orders issued on 22nd June 2022 on the principal ground that it was not afforded a hearing and was contrary to public policy and proper administration of justice and due process of the law.

7. The Applicant contends that the orders offended Articles 47, 48, and 50 of the Constitution and were patently irregular and conclusive. It is therefore contended that it was fair, just and in the greater public interest that the ex-parte orders issued on 22nd June 2022 be vacated and set aside to enable the matter proceed for determination on its merit.Finally, the Applicant contends that it is only fair, just and in the interest of justice that the application be allowed to avoid a gross miscarriage of justice.

8. The application is supported by the affidavit of Kentice Tikolo sworn on 1st July 2022 and annexures thereto. On 7th July 2022, the impugned orders were suspended by the Tribunal pending hearing inter-partes.

9. The application is opposed through grounds of opposition dated 12th July 2022. It is the Respondent’s contention that the application is an abuse of the Tribunal process and the law as the Tribunal lacks jurisdiction as its ruling on record has not been set aside or reviewed and an appeal against the ruling vide ELC Appeal No. 90 of 2021 was dismissed.

10. According to the Respondents, the application is devoid of any merit, is frivolous, vexatious and scandalous. It is further contended that granting the orders sought would not only embarrass the Tribunal but expose it to disrepute and complaint to the regulator/appointing authority.

11. The Respondents aver that the Tribunal lacks jurisdiction as the landlord/tenant relationship no longer exists between the parties. The orders of 22. 6.2022 were obtained by concealment of material facts and setting them aside needed to protect judicial sanctity according to the Respondents.

12. It is further contended that the impugned orders are merited as litigation must come to an end as there was no case to be set down for hearing on merit. The Applicant is accused of lacking equity and being out to cause the Respondents to incur costs by deliberately engaging in filing of frivolous applications in different courts which should be abhorred. As such, the Respondents seek for dismissal of the application with punitive costs.

13. The application was argued orally wherein counsels reiterated the foregoing diametrically opposed views on the impugned orders. Counsel for the tenant argued that the ruling delivered by Justice Angote declined leave to appeal out of time. It did not dismiss the appeal on merit while CMC No. E1145 of 2021 was withdrawn without any substantive orders as the court lacked jurisdiction. The bottom line of the Applicant’s counsel’s case is that the application for review ought to have been allowed to proceed to hearing and determined on merit. He relied on the decision in the case of; John Imoteli alias Barasa Imoteli vs Michael Aluku Barasa [2021] eKLR where the right of hearing was emphasized in allowing the appeal.

14. Counsel for the Respondents submitted that the Applicant had filed a memorandum of appeal which was struck out by Justice Angote. An application filed in CMCC No. E1145/2021 was dismissed vide a ruling of the said court. The tenant having vacated the premises, it is the Respondents’ case that this Tribunal has no jurisdiction and the application was an abuse of the court process. In response, the Applicant’s counsel submitted that the issues raised by counsel for the Respondents relate to the application dated 2. 6.2022 as the issue herein is whether it was fair to give orders of 22. 6.2022 without affording the tenant a hearing.

15. Having listened to both counsels, I am required to determine whether I ought to set aside my orders of 22nd June 2022.

16. The main ground for the application is that the tenant/Applicant was denied a hearing before the impugned orders were made. I have agonized over the issue and the reasons given in the impugned orders and feel that while I honestly believe a court of law or a Tribunal can act ex-debito justitiae in the circumstances calling for it, analyzing the facts of this case against the said orders might result into an embarrassment of a fair trial. This may not be in the interest of justice.

17. In the case of; Phoenix of E.A. Assurance Company Limited vs S.M. Thiga t/a Newspaper Service [2019] eKLR, the court of Appeal at paragraph 2 had the following to state:-“2. In common English Parlace, “Jurisdiction denotes the authority or power to hear and determine judicial disputes or even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debitio justitiae. It is for that reason that this court has to deal with this appeal first as the result directly impacts civil Appeal No. 6 of 2018 which is related to this one….”

18. Ex-debitio justitiae is defined as an obligation arising out of the justice of the matter which expression is often used to describe a situation where judicial review is available. The principle of ex-debitio justitiae is founded on a recognition of a debt that the justice delivery system owes to a litigant to correct an error in a judicial dispensation. Its application by the very nature of things cannot be made to depend on varying perceptions of legal omissions and commissions but such recognition of the debt which have the potential of opening new vistas of exercise of jurisdiction to relook concluded cases must on surer foundations which have been discerned and expressed therein.

19. This principle, I apprehend must however in the circumstances of this case be weighed against the higher calling not to condemn a party unheard which has now been codified under Articles 48, 49 and 50 of the Constitution of Kenya, 2010. The right to fair hearing is a cardinal right which despite my view that I was right ought to be afforded to the Applicant in order that the application dated 2nd June 2022 may be determined on the merit.

20. I am in this regard guided by the Court of Appeal’s decision in the case of; Gulumhussein F Gulamhussein vs Imperial Bank Limited (In Receivership) & Another [2018] eKLR wherein the right to hearing was discussed at paragraph 10 & 11 as follows;-“10. In this case, we found that notwithstanding the fact that there was no appearance for the Appellant on the material day, the Appellant still had no notice that such an application would be made. For all intent and purposes, what had been slated for that day was delivery of a judgment. This being the case, we agree with the Appellant that it was not afforded an opportunity to be heard on the issue contrary to the rules of natural justice. The certainity of the right to be heard was succinctly put by this court in Mbaki & Another vs Macharia & Another [2005] 2EA 206 at page 210 as follows;-“The right to be heard is a valued right. It would offend all notions of justice if the right of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

11. It did not matter that the learned Judge could have arrived at the same decision even after hearing the Appellant. This much was appreciated by Nyarangi J.A. in Onyango vs Attorney General [1986-1989] EA 456 at page 60;-“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”

21. In the premises, and in keeping with the doctrine of stare decisis and the fact that the foregoing decisions are binding on this Tribunal, I must follow the guidance given therein and proceed to allow the application dated 1st July 2022.

22. Consequently, the ex-parte orders given on June 22, 2022 are hereby set aside and/or vacated in their entirety. The costs arising from the application shall abide the outcome of the application dated June 2, 2022 which is reinstated for hearing before the Honourable chairman on a date to be fixed by the said court.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF NOVEMBER 2022. HON. GAKUHI CHEGEVICE CHAIR18. 11. 2022Delivered in the presence of;Mr. Maina holding brief for Mrs. Mbaabu for the RespondentKamande holding brief for Agwara for the ApplicantFurther Orders:The matter shall be mentioned before the Honourable chairman on 23. 1.2023Respondent shall have 14 days to file and serve replying affidavit to application dated 2. 6.2022. Applicant shall have 14 days to file further affidavit and submissions to the application dated 02. 6.2022. Respondent shall have 14 days thereafter to file and serve submissions in response.HON. GAKUHI CHEGEVICE CHAIR18. 11. 2022