[2022] KEBPRT 844 (KLR)

Global Liquor Agencies Limited v Gituma (Tribunal Case E208 of 2022) [2022] KEBPRT 844 (KLR) (Civ) (21 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 844 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E208 of 2022

Andrew Muma, Vice Chair

November 21, 2022

Between

Global Liquor Agencies Limited

Tenant

and

Erastus Gituma

Landlord

Ruling

A. Parties and Their Representatives 1. The applicant Global Liquor Agencies Ltd is the landlord and the beneficial owner and rented out space of the premises known as Shop No 9 at Bustani Shopping Centre on LR No 12717/209 to the tenant. (hereinafter “the landlord”).

2. The Firm of Okonji Wanjira & Associates Advocates represent the applicant/landlord in this matter.

3. The respondent Global Liquor Agencies Ltd is the tenant and rented out space in the suit premises Shop No 9 at Bustani Shopping Centre for the business (hereinafter the “Tenant”)

4. The Firm of Kabugu & Company Advocates represent the respondent/tenant in this matter.

B. The Background of the Dispute 5. The landlord and the tenant entered into a tenancy agreement for a period of five years commencing 1st February 2017.

6. The applicant/landlord issued the tenant with two notices to terminate tenancy dated October 28, 2021 and February 14, 2022 respectively, on the grounds that the landlord intended to undertake major repairs on the premises as required under a directive issued by the department of health and the same could not be done without acquiring vacant possession.

7. Subsequently, the tenant/applicant has since moved this tribunal by way of reference and a notice of motion application dated March 3, 2022 under section 12(4) of the landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The tenant was seeking that pending the hearing and determination of the suit the landlord be restrained from interfering with the tenant’s use of the premises as well as that the landlord be compelled to accept rent at the set rate as per the lease.

8. Accordingly, this honorable tribunal dismissed the tenants case and the application vide its ruling delivered on July 20, 2022.

9. However, vide a notice of motion application marked urgent dated July 25, 2022, the tenant/ applicant moved the Tribunal seeking stay of execution of the Tribunal’s ruling delivered on July 20, 2022.

10. This application has been vehemently opposed by the landlord vide a replying affidavit sworn by Erastus Gituma, on July 28, 2022.

11. The matter for determination therefore is the application by the tenant dated July 25, 2022 for review of the Judgement of this Tribunal.

C. Jurisdiction 12. The jurisdiction of this tribunal is not in dispute.

D. The tenant’s Claim 13. The applicant contends that it has since obtained new and compelling evidence that can warrant this tribunal to review its orders which evidence the applicant could not have availed at the trial and the determination of the suit. These grounds are well set out in supporting affidavit of Robert Kibiira sworn on the 25th July of 2022 and reiterated in the applicant’s written submissions dated September 5, 2022.

14. The tenant primarily argues that it has since renovated the premises and as such there was no need to vacate the premises to allow for repair as ordered by the tribunal.

E. The landlord’s Claim 15. The landlord has opposed the application contending that the orders as issued in this matter by the tribunal; were final, and they were no directing the tenant to renovate the premises. They argue that the orders were not conditional and as such, they have urged the tribunal to dismiss the application.

F. List of Issues for Determination 16. Whether the applicant’s application is merited.

G. Analysis and Determination Whether The applicant’s Application is Merited. 17. This tribunal considered this matter in totality and on July 20, 2022, it delivered a ruling. The Tribunal ordered as follows;a.The upshot is that the tenant’s reference and notice of motion application dated March 3, 2022 are hereby dismissed in the following terms:b.The landlord’s application dated May 9, 2022 is hereby allowed.c.The tenant shall grant vacant possession to the landlord by July 31, 2022 failure to which the landlord shall be at liberty to break in.d.OCS Mlolongo police station to assist in compliance and keep peace.e.Each party shall bear their own costs.

18. These orders did not direct the tenant to comply with any condition in order to remain in the demised premises.

19. Further, throughout the proceedings of this case, the tenant never informed the tribunal that they were undertaking renovations in the demised premises. To come up at this time and claim new development is the renovations they have undertaken beats logic and cannot stand. In my view the new matter should have been a matter that existed at that time and the tenant was prevented from knowledge of the same even with due diligence not matters self created by the tenant after the fact.

20. The tribunal is therefore constrained to dismiss the tenant’s application on the basis that the same is an afterthought, and an abuse of the tribunals process.

21. Indeed, there must be a cogent ground for a tribunal to set aside its own ruling or vary the same. The applicant has not met the requirements of reviewing an order. The application before the tribunal is therefore unmerited.

OrderFor the reasons given above I order as follows that;a.The upshot is that the tenant’s application dated July 25, 2022 is dismissedb.The respondent shall have costs of the application.

HON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 21ST OF NOVEMBER,2022, IN THE PRESENCE OF OKONJI FOR THE landlord AND KABUGU FOR THE tenantHON A. MUMAVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL