[2022] KEBPRT 113 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 39 OF 2020 (ELDORET)

CHRISTOPHER LEBO………………………..………….………TENANT/APPLICANT

VERSUS

SIRGOI HOLDINGS LTD………………………………….LANDLORD/RESPONDENT

RULING

1. The Landlord’s/Applicant’s notice of motion dated 2nd February 2021 seeks the following orders;

a. Spent.

b. Spent.

c. That the honourable court be pleased to set aside the ex-parte orders entered against the Landlord/Applicant on 24th December 2020.

d. That this entire suit be struck out for being an abuse of court process as it offends the provisions of section 6 of the Civil Procedure Act.

e. Costs.

2. The application is based on the grounds on the face of the said application and the affidavit of Ms Elizabeth Kimei Counsel for the Applicant and which I summarize as follows;

a. That the orders issued on 24th December 2020 were issued without the Landlord being informed and/or involved in the hearing process.

b. That there exists BPRT case No. 89 of 2019 which is directly and substantially in issue as the suit herein.

c. That BPRT case No 89 of 2019 is yet to be determined.

d. That the current suit is therefore an abuse of the court process.

3. The application is opposed. Counsel for the Tenant has sworn and filed a replying affidavit which I summarize as follows;

a. That both parties to this matter were served with hearing notices by the Tribunal by registered post.

b. That the Landlord was accorded an opportunity to be heard but failed to attend court on 24th December 2020.

c. That Tribunal case No. 89 of 2019 was concluded on 18th December 2020.

d. That there are no active proceedings in Tribunal case No. 89 of 2019.

e. That the Landlord’s application dated 9th July 2020 is an abuse of court process as the termination notice it seeks to effect has already been challenged in case No. 39 of 2020 (this suit).

f. That the Tenant has already complied with the orders sought to be set aside and setting the same aside would therefore not serve any useful purpose.

g. That the Applicant has not demonstrated that it would suffer any prejudice if the orders sought are not granted.

4. The only issues to be determined in this application in my humble view are the following;

a. Whether the orders issued on 24th December 2020 ought to be set aside.

b. Whether the instant suit ought to be struck out on account of the existence of BPRT case No. 89 of 2019.

5. On issue (a)

a. The Landlord’s main contention on this issue is that the proceedings of 24th December 2020 were without his information and involvement. The Landlord contends that no hearing notice was served upon it. The Tenant on his part has contended that both parties in this matter were served with the hearing notices by the Tribunal by way of registered post.

b. I have perused the record and do note that the applications dated 29th June 2020came up for hearing for the first time on 6th July 2020 when an inter partes hearing date was fixed for 19th August 2020. It is not clear from the record how the date of 24th December 2020 was fixed and by whom it was fixed. I am also not able to tell from the court record whether indeed the Landlord was served with the hearing notice for 24th December 2020 by registered post.

c. The record does not contain any certificate of posting and none of the parties have endeavoured to produce any. Although it is true that the hearing notice for the 24th December 2020 is on the record, the evidence of its posting and therefore its service is lacking. In the circumstances, I do find that there being no evidence of service, the Landlord was denied a fair hearing and as a matter of justice, I do set aside the orders of 24th December 2020.

d. The Tenant has indicated that he has already complied with the orders issued on 24th December 2020 and therefore no useful purpose would be served in setting the same aside. The compliance the Tenant alludes to is in connection with the payment of rent. The orders of 24th December 2020 required the Tenant to pay the amount of Kshs 75,000/- being the rent owed as at 31st December 2020. The Tenant has annexed receipts showing that he has paid the sum of Kshs 65,000/- and not Kshs 75,000/- as ordered. The payment of the rent will not affect the Tenant in any way as he is still in the premises, and in any case, he has an obligation to pay rent. Whether the orders are set aside or not, the Tenant as long as he remains in possession of the suit premises is obligated to pay rent.

6. On issue (b)

a. The Landlord has applied that this suit be struck out for being an abuse of the court process as it offends section 6 of the Civil Procedure Act. The Landlord’s main contention in this regard is that there exists BPRT case No 89 of 2021 between the same parties and which is still pending in this Tribunal.

b. I have read the orders issued by the Tribunal in Tribunal case No. 89 of 2019 on 18th February 2020. The said orders declared the Landlord’s notice dated 1st October 2019 as defective and granted the Landlord the liberty to serve the Tenant with a notice in the prescribed form. The Landlord was ordered to pay the Tenant the costs of the reference assessed at Kshs 30,000/- all inclusive and the Tenant allowed to deposit further rent in the Tribunal.

c. Clearly, BPRT case No 89 of 2019 was finalized by the orders of 18th February 2021and any notice of termination issued after that date could only be challenged through a fresh reference filed in a separate matter.

d. There could be no further litigation in BPRTcase No 89/2021 unless the same be revived by way of review of the orders issued on 18th February 2020.

e. I therefore decline to strike out the instant suit which seeks to challenge the notice issued by the Landlord on 21st April 2020 and which could obviously not have been challenged by a suit filed in the year 2019.

7. In conclusion, I do order that;

a. the application dated 2nd February 2021 be allowed in terms of prayer 2 and further order that the Tenant’s application dated 29th June 2020 be fixed for hearing on a priority basis.

b. The application dated 9th June 2020 will be heard on 9th March 2022.

c. The status quo to be maintained.

d. Parties to file their respective pleadings within twenty one days.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari (Chairman) this 12th day of January, 2022 in the presence of Ms Cherono for the Landlord/Applicant and Mr Kirui for the Tenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL