[2021] KEBPRT 348 (KLR)
The tribunal found that the order made on 22nd October 2019 in BPRT No. 1000/2019 took precedence as it was issued first and had not been set aside or stayed. The subsequent order in BPRT No. 994/2019 did not override the earlier order, and there was no evidence that the order restraining the auctioneers was served...
Source-derived case information.
- Citation
- [2021] KEBPRT 348 (KLR)
- Parties
- Applicant: Cyrus Ikadwa Asievukwa; Respondent: Elizabeth Kimemia
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 994 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Precedence of Tribunal Orders and Status of Application
- Outcome
- application dismissed as spent
- Legal Topics
- Landlord Tenant Disputes, Distress for Rent, Interim Orders, Priority of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Ikadwa Asievukwa
Applicant
Elizabeth Kimemia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Precedence of Tribunal Orders and Status of Application
Legal Issues
- 1 Which tribunal order between BPRT No. 1000/2019 (22/10/2019) and BPRT No. 994/2019 (26/10/2019) takes precedence.
- 2 Whether the application dated 22/10/2019 remains sustainable in light of subsequent events.
Ratio Decidendi
The tribunal found that the order made on 22nd October 2019 in BPRT No. 1000/2019 took precedence as it was issued first and had not been set aside or stayed. The subsequent order in BPRT No. 994/2019 did not override the earlier order, and there was no evidence that the order restraining the auctioneers was served as directed. Furthermore, the application dated 22/10/2019 was rendered moot by subsequent events, including the change in tenancy and the absence of any ongoing landlord-tenant relationship. As such, there was no basis for the tribunal to continue with the proceedings, and the reference was marked as spent.
Court Disposition
application dismissed as spent
Orders
- The reference is marked as spent.
- No orders as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 994 OF 2019 (NAIROBI)
CYRUS IKADWA ASIEVUKWA………….......……….….…TENANT/APPLICANT
VERSUS
ELIZABETH KIMEMIA…………………....................LANDLORD/RESPONDENT
RULING
When the parties appeared before court on 4th March 2021, it was common ground that the application dated 22nd October 2019 had been overtaken by events.
Mr. Osewe for the Tenant submitted that what remained for the honourable court to determine was the issue as to which order between the one made in BPRT NO. 1000/2019 on 22/10/2019 and the one made in this case on 26/10/2019 takes precedence.
According to the Tenant’s counsel, the order in BPRT No. 1000/2019 was meant to defeat the application in BPRT No. 994/2019.
According to Mr. Kinyua for the Landlord, his client was not aware of any other suit by the time he filed BPRT No. 1000/2019 as he had not been served.
The Landlord’s counsel proceeded to argue that there was no longer any Landlord/Tenant relationship between the Applicant and Respondent.
The order in BPRT No. 1000/2019 has not been set aside or challenged on appeal.
He referred the court to the replying affidavit filed on 18/11/2019.
He concluded by saying that prayer 8 of the application was also overtaken by events since the premises were given out to another tenant.
I have perused both files and wish to make the following observations:-
(i) Prior to 25th October 2019, there was no order restraining the Landlord from levying distress in BPRT No. 994/2019.
(ii) On 25th October 2019, the Tribunal restrained Moran Auctioneers from selling and/or disposing the Tenant’s goods which were proclaimed on 23rd October 2019.
(iii) The Tribunal directed that the order be served upon the Auctioneers by the Tenant’s advocate.
(iv) There is no affidavit of service in the court file to confirm whether the said order was served as directed.
(v) On 22nd October 2019, the Landlord was granted a break in order and access to the suit premises to enable levying of distress for a sum of Kshs.18000/- for outstanding electricity bills.
(vi) There is no stay order or appeal preferred against the break in order or levy of distress.
From the foregoing, it is clear that the order of 22nd October 2019 took precedence as it was made first.
If the Tenant was aggrieved by the auctioneers non compliance or otherwise with the order of 25th October 2019, there is an appropriate forum through which the issue can be addressed.
In the circumstances, I find that the application dated 22/10/2019 has been overtaken wholly and there is no basis upon which this court can continue to sustain the instant proceedings.
The Reference is therefore marked as spent with no orders as to costs.
HON. GAKUHI CHEGE
VICE CHAIR
23/4/2021
Ruling delivered in presence of Kinyua for the Landlord/Respondent
No appearance for the Tenant.