[2021] KEBPRT 129 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E186 OF 2021 (NAIROBI)

FRANCIS MUTHUI MAKAU.....................LANDLORD/APPLICANT

VERSUS

DAVID MUSYOKA MBITI............................TENANT/RESPONDENT

RULING

1. The Tenant’s application dated 25th September 2021 seeks an order setting aside the orders of the Tribunal issued on 9th September 2021.

2. The application is supported by the affidavit of David Musyoka Mbiti which I summarize as follows;

a. That the case herein was heard and concluded in the absence of the Tenant/Applicant.

b. That the Tenant did not attend the virtual hearing of 10th August 2021due to internet technicalities and technology illiteracy on the part of the Tenant.

c. That upon perusal of the court file, the Tenant discovered that the matter had proceeded in his absence on 10th August 2021 and he had been ordered to pay arrears of Kshs 120,000/- within thirty days.

d. That the ruling was given irregularly since the Tenant was not heard.

e. That the Tenant ought not to be condemned unheard, it is contrary to natural justice.

f. That the Tenant stands to suffer irreparable harm if the ruling (sic) is executed and his business premises closed.

3. The application is opposed. The Landlord has filed a replying affidavit sworn by himself on 5th October 2021 and which I summarize as follows;

a. That the Applicant is his Tenant paying a monthly rent of Kshs 10,000/-

b. That when this matter came up for hearing on 14th July 2021, the Tenant/Applicant was present.

c. That the Tenant had been served with the application and an affidavit of service was filed.

d. That on 14th July 2021, the Tenant had not responded to the Landlord’s application but instead sent him Kshs 10,000/- on 9th August 2021.

e. That on 8th September 2021, when this matter was coming up for ruling, the Tenant was present.

f.That currently, the Tenant is in rent arrears amounting to Kshs 130,000/-.

g. That the assertion that the suit premises would be locked in thirty days is unfounded.

h. That the Landlord is facilitating (sic) a loan and the rent from the suit premises is his only source of income.

4. The only issue to determine is whether the Tenant/Applicant is entitled to the orders sought in his application dated 25th September 2021.

5. The application dated 8th June 2021 first came up for hearing on 10th June 2021 when the Landlord/Applicant was ordered to serve the same for hearing on 14th July 2021. On the same date, the Tenant was ordered to pay the rent for the month of June and July amounting to Kshs 20,000/- before the hearing date.

6. On 14th July 2021, Mr Kamau advocate was present for the Landlord while the Tenant was present in person. The Tenant on the said date informed the Tribunal that he had not paid rent because of the covid 19 situation. he further stated that he “supplies” schools. The Tribunal ordered as follows;

“The Tenant has seven days to file his replying affidavit. The application dated 8th June 2021 will be heard on 10th August 2021.

7. On 10th August 2021, Mr Kamau, counsel for the Landlord was present, the Tenant was absent. Mr Kamau informed the Tribunal that the Tenant had not yet responded to the Landlord’s application and that the Tenant had only paid Kshs 10,000/- against a total arrears of Kshs 120,000/-. The matter was thereafter set down for ruling on 8th September 2021and a ruling eventually delivered on 10th September 2021. It is this ruling and the orders emanating therefrom that the Tenant now applies to have the same set aside.

8. The Tenant’s affidavit states that the Tenant failed to attend the virtual hearing of 10th August 2021 due to technical challenges. The Tenant’s affidavit is silent on what the Tenant did about this state of affairs until 9th September 2021 when the ruling in this matter was delivered.

9. I also note that on 14th July 2021,the Tenant was present (virtually) during the hearing of the Landlord’s application. The Tenant was granted seven days to file a response to the Landlord’s affidavit. As at 10th August 2021,the Tenant had not filed any response to the Landlord’s affidavit. No explanation for this failure to file a replying affidavit by the Tenant has been given in the Tenant’s affidavit dated25th September 2021.

10. The Landlord’s application dated8th June 2021basically seeks the payment of the outstanding rent failing which leave to levy distress for rent be granted. I have carefully perused the affidavit of the Tenant and I have not seen any challenge to the averment by the Landlord that indeed the Tenant is in rent arrears. The Tenant does not state anywhere in his affidavit that he has paid the rent demanded by the Landlord or that the demands by the Landlord are unmerited.

11. The Tenant’s main contention was that the ruling was given irregularly and the same ought to be set aside. Other than that general statement, the Tenant has not demonstrated in what particular manner the ruling of the Tribunal was irregular. The Tenant was served with the application by the Landlord, he attended on the date that the matter was fixed for hearing and participated in the proceedings.

12. On 10th June 2021, the Tenant was ordered to pay the rent for the month of June andJuly totaling Kshs 20,000/- on or before 14th July 2020. On 14th July 2021, counsel for the Landlord informed the Tribunal that the Tenant had not complied with the orders of the Tribunal issued on 10th June 2021.

13. There is no evidence that those orders for the payment of rent had been complied with even as at the date of giving the date for the ruling. The Tenant was further ordered to file his replying affidavit within seven days from 14th July 2021. As at 10th August 2021 when the application came up for hearing, the Tenant had not filed his responses.

14. The averments by the Landlord therefore remained uncontroverted. In these circumstances, is the Tenant deserving the Tribunal’s discretion to set aside the ruling of the Tribunal delivered on 9th September 2021?

15. In the case of Shah Vs Mbogo [1967] EA166, the court held;

“This discretion to set aside an ex parte judgement is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.

However, the discretion of the court must always be exercised judiciously with the sole intention of dispensing justice to both or all the parties. Each case must therefore be evaluated on its unique facts and circumstances. Among the factors to be considered is whether the Applicant will suffer any prejudice if denied an opportunity to be heard on merit.”

16. The Tenant in this case has not explained why he did not file his replying affidavit. He has not even annexed an affidavit demonstrating what his defence to the Landlord’s application amounts to. That failure cannot be an accident, excusable mistake or error on the part of the Tenant, he does not state so in his affidavit. The discretion of the court is to be exercised to give justice to all parties and in the circumstances of this case, I am unable to exercise any discretion in favour of the Tenant.

17. I have already found that the Tenant was served with the application and he participated in the proceedings of 14th July 2021. There is nothing in the proceedings to demonstrate that the ruling delivered on 9th September 2021 was delivered irregularly or that indeed the Applicant was denied an opportunity to be heard.

18. The claim that the Applicant was technologically challenged on 10th August 2021 is not based on any solid ground as the same Tenant represented himself competently on 14th July 2021 when the matter proceeded virtually. He can therefore not be said to be a stranger to virtual proceedings.

19. Consequently, I do not find any merit in the Tenant’s application dated 25th September 2021 and the same is dismissed with costs to the Landlord.

CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED IN VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 25TH DAY OF NOVEMBER 2021 IN THE PRESENCE OF MR KAMAU FOR THE LANDLORD/APPLICANT AND IN THE ABSENCE OF THE TENANT AND THEIR COUNSEL.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL