[2022] KEBPRT 851 (KLR)

Cause Impact Limited v Towfiq Trust Registered Trustee & 2 others (Tribunal Case E435 of 2021) [2022] KEBPRT 851 (KLR) (18 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 851 (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

Towfiq Trust Registered Trustee

Landlord

and

Tysons Limited

Agent

and

Sannex Enterprises Auctioneers

Auctioneer

Ruling

1. On September 24, 2021, this Tribunal delivered a ruling by which it upheld the Respondent’s preliminary objection dated August 25, 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 6 years tenancy by dint of a letter of offer executed by them.

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

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

4. Through an application dated June 15, 2022, the Respondents moved this Tribunal under certificate of urgency seeking for orders that pending hearing of application dated June 2, 2022, the ex-parte orders granted on June 3, 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 June 15, 2022.

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

6. On July 1, 2022, the tenant moved this Tribunal under certificate of urgency through a motion dated July 1, 2022 seeking for suspension of the operation of the orders issued herein on June 22, 2022 by the honourable vice chairman. The tenant also sought for review, vacation or setting aside of the drastic orders issued on June 22, 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 June 22, 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 July 1, 2022 and annexures thereto. On July 7, 2022, the impugned orders were suspended by the Tribunal pending hearing inter-partes.

9. The application is opposed through grounds of opposition dated July 12, 2022. It is the Respondents’ 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 June 22, 2022 were obtained by concealment of material facts and setting them aside needed no hearing and was in line with the law and need 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 CMCC No. E1145 of 2021 was withdrawn without any substantive orders as the court lacked jurisdiction. The bottom line of the applicant’s counsel case is that the application for review ought to have been allowed to proceed to hearing and determination on merit. He relied on the decision in the case of John Imoteli alias Barasa Imoteli – vs- Michael Alluku 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 E1145/2021 was dismissed vide a ruling of the 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 court process. In response, the applicant’s counsel submitted that the issues raised by counsel for the Respondents relate to the application dated 2nd June 2022 as the issue herein is whether it was fair to give orders of 22nd June 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 June 22, 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 that a court of law or a Tribunal can act ex-debito justitiae in 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 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 Parlance “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 debito justitiae. It is for that reason hat 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-debito justitiae is defined as an obligation arising out of the justice of the matter where judicial review is available. The principle of ex-debito 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 ofthe 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 June 2, 2022 may be determined on the merit.

20. I am in this regard guided by the court of appeal decision in the case of Gulamhussein F. Gulamhussein – vs- Imperial Bank Limited (in receivership) & Another (2018) eKLR wherein the right to hearing was discussed at paragraphs 10 & 11 as follows:-“10. In this case, we find 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 centrality of the right to be heard was succinctly put by this court in Mbaki &others – vs- Macharia & Another (2005) 2 EA 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 would have arrived at the same decision even after hearing the appellant. This much was appreciated by Nyarangi J.A. in Onyango – vs- Attorney Genenral (1986-1989) EA 456 at page 460. “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.

23It is so ordered.

RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 18TH DAY OF NOVEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of: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 23/1/2023. Respondent shall have 14 days to file and serve replying affidavit to application dated 2nd June 2022. Applicant shall have 14 days to file further affidavit and submissions to the application dated 2nd June 2022. Respondent shall have 14 days thereafter to file and serve submissions in response.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL18TH DECEMBER 2022