[2021] KEBPRT 247 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 94 OF 2019

(NAIROBI)

CENTURY DRY CLEANERS…………………………TENANT/APPLICANT

VERSUS

FRANCIS WAINAINA MUTUNGI

PETER KAMAU

STEPHEN MBURU AND

ROBERT MUNGAI…………………………..LANDLORDS/RESPONDENTS

RULING

1. The Tenant’s application dated 14th June 2021 seeks the following orders;

a. Spent

b. Spent

c. That the orders given herein on 21st April 2021 directing that this case proceed ex-parte and the judgement/ruling given on 21st May 2021 be set aside and the Tenant/Applicant be allowed to present its case in these proceedings.

d. Costs.

2. The application is based on the grounds;

a. That on 20th April 2021, the Tenant’s advocates attempted to link with the Tribunal for the virtual hearing but because of internet and other challenges failed to do so.

b. That failure to attend the virtual hearing of 20th April 2021 was beyond the control of the Tenant’s advocate.

c. That on 21st May 2021, while counsel for the Tenant was attending the Tribunal over another matter, he learnt that this matter was due for judgement.

d. That the Tenant would like to be given an opportunity to present its case in respect of these proceedings.

3. The Tenant’s application is supported by the affidavit sworn by counsel for the Tenant, Mr Keyonzo. The affidavit more or less reiterates the grounds upon which the application is brought save for the introduction of the Tenant’s valuation report marked as SMK 3 in the said affidavit. I do however note that the notice annexed to the Tenant’s advocate’s affidavit is one from the Rent Restriction Tribunal and not from the Business Premises Rent Tribunal.

4. The application is opposed. Counsel for the Landlord has sworn a replying affidavit whose contents I summarize as follows;

a. That on 12th June 2020, the Applicant’s preliminary objection was dismissed by the Tribunal.

b. That on 12th June 2020, the Tribunal ordered that the Tenant’s valuation report be filed within thirty (30) days and in default, the Tribunal to assess the rent as per the Landlord’s valuation report.

c. That the counsel for the Tenant has admitted to being served with all the hearing notices.

d. That the notice the Tenant’s counsel purports to have received from this Tribunal is indeed a notice from the Rent Restriction Tribunal.

e. That the valuation report annexed to the Tenant’s application is dated 14th June 2021 while the orders to file the valuation report within 30 days were issued in the year 2019.

f. That the documents annexed by Mr Keyonzo are meant to mislead the Tribunal.

g. That this is the high time litigation has to come to an end.

5. The Tenant/Applicant has filed submissions in support of the application and which I summarize as follows;

a. That the prayer of stay of execution has been overtaken by events as the Landlord has already levied distress for rent based on the increased rent.

b. That the Applicant’s submissions therefore address themselves only on the issue of setting aside the judgement.

c. That the issue in this matter is whether enough grounds and good cause has been shown on which the ex-parte judgement given in this case should be set aside. The cases ofPatel Vs E.A Cargo Handling Services Ltd and Shah Vs Mbogo have been quoted in aid of the Tenant’s Case.

d. That the reasons why Mr Keyonzo could not attend the Tribunal on the day the matter came up for hearing are genuine and not deceptive.

e. That the Tenant has now filed a valuation report which ought to be considered before a judgement is given.

6. The Landlord’s submissions in reply may also be summarized as follows;

a. That the grounds for setting aside a judgement ought to be reasonable and made on very firm grounds or basis.

b. That there is no explanation why the orders issued on 12th June 2020 have never been complied with as to filing of the valuation report despite counsel having sought many adjournments to enable him to file the valuation report.

c. The valuation report is not even part of the court documents. It was not paid for and is a mere annexture after judgement.

d. That the failure to file the valuation report in the court record and on time was and is not inadvertence excusable mistake or error since no reason has been given.

e. That the Tenant and/or its counsel are out to delay and obstruct the cause of justice.

f. That the judgement of the Tribunal has been executed and the application serves no worthy purpose.

7. The only issue which arises for determination in the circumstances of this application is whether the Applicant/Tenant is entitled to the orders sought in its application dated 14th June 2021.

8. On 20th August 2019, the Tenant was ordered to file its valuation report within sixty days thereof and the matter fixed for hearing on 24th October 2019. On 24th October 2019, the Tenant was once again ordered to file its valuation report on or before 20th November 2019. None was filed.

9. On 12th June 2020, the Tribunal issued the following orders in regard to the filing of the valuation report by the Tenant.

“3. The Tenant shall file and serve a valuation report within thirty (30) days from the date of this ruling, in default, the Tribunal shall assess the rent as per the Landlord’s valuation report”.

10. As at 21st May 2021 when the ruling sought to be set aside was delivered, the Tenant had not filed any valuation report. As per the order above, the Tenant ought to have filed its valuation report latest by 12th July 2020.

11. The Tenant’s application admits to the fact that the Tenant was duly served with the hearing notice for 20th April 2021. The Tenant’s counsel further states that he attempted to link with the Tribunal on the said date but was unable due to internet and other challenges. The Tenant therefore states that the failure to attend court on 20th April 2021 was beyond the control of its advocates.

12. Would the attendance by counsel for the Tenant/Applicant have had an effect on the orders made by the Tribunal on 12th June 2020. I do not think so. The Tenant/Applicant has not sought to vary the orders of 12th June 2020. It has not sought to extend time within which to file its valuation report. It has further not sought to have the valuation report admitted into the court record out of time. It is also clear that the Tenant/Applicant has not attempted to explain why it had not filed its valuation report on time as ordered by the Tribunal.

13. Even if the orders issued by the Tribunal by its ruling of 21st May 2021 are set aside the orders of 12th June 2020 would remain intact, there is no application for a variation of the same. The effect of the orders of 12th June 2020remaining intact would be that the Tribunal would still have to determine this matter on the basis of the Landlord’s valuation report. In the circumstances, no useful purpose would be served by granting the orders sought in the Tenant’s application.

14. The court in setting aside a judgement does so in the exercise of its discretion. In the case of Shah Vs Mbogo [1967] EA 116, the court stated;

“The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or errors but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

15. The Tenant’s failure to file its valuation report is the cause of the hardship that the Tenant now finds itself in. Was that failure caused by accident, inadvertence or excusable mistake? The Tenant has not explained the reasons why it did not file its valuation report as ordered. It is not possible therefore to state the reasons for that failure. In the absence of those reasons, I have no basis upon which I may exercise my discretion to set aside the ruling of 21st May 2021 and the orders emanating therefrom.

16. The Tenant has further admitted that the Respondent/Landlord has already executed the orders sought to be set aside by levying distress for rent arrears for the increased rent and in accordance with the judgement of the Tribunal. The Landlord through Little Vineyards Auctioneers has already sold the Applicant’s goods distrained on10th July 2021.

17. In the circumstances, I do not find any merit in the Tenant’s application dated 14th June 2021 and the same is hereby dismissed with costs to the Landlords/Respondents.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this10thday of September 2021 in the presence of Mr Keyonzo for the Tenant/Applicant and in the absence of Mr Kithinji Thuranira for the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL