[2024] KEBPRT 59 (KLR)

Green Posts Kenya Limited v Waweru (Tribunal Case E547 of 2023) [2024] KEBPRT 59 (KLR) (26 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 59 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E547 of 2023

J Osodo, Chair & Gakuhi Chege, Member

January 26, 2024

Between

Green Posts Kenya Limited

Applicant

and

Lois Harriet M. Waweru

Respondent

Ruling

1. The applicant herein moved this tribunal vide a Notice of Motion under a Certificate of Urgency dated 8th October, 2023 in which it sought for the following orders; -i.That the application be certified urgent.ii.That leave be granted to the firm of Onindo Onindo & Associates to come on record and act for the tenant herein.iii.That the court does set aside orders issued on 26th September, 2023 dismissing the suit/reference for non-attendance on the part of the parties herein.iv.That the tenant be given leave to prosecute this matter to its logical conclusion.v.That this tribunal be pleased to grant any order suitable in the circumstancesvi.That the costs of the application be in cause.

2. The application is supported by an affidavit of even date in which the applicant deposes as follows; -i.That this matter was dismissed by this tribunal on 26th September, 2023 and has been informed by the firm of Onindo Onindo & Associates that the reason for the dismissal was because parties were not in attendance in court on the said date, of which the matter was coming up for mention to confirm compliance in respect to filing of submissions.ii.That the applicant was not aware that his previous advocates, Murunga Mwangi & Associates did not attend court on the said date though the firm had instructions to represent it.iii.That the applicant was sure that the said firm of Onindo Onindo & Associates would represent him well in this matter.iv.That the landlady has still locked the premises together with all his business tools and the applicant/tenant cannot access the premises.

3. The application is opposed vide a replying affidavit dated 2nd November, 2023 in which the respondent/landlady deposes as follows; -i.That the application is not proper in law because the supporting affidavit has been sworn by one Zack Newton on behalf of the applicant/Company yet there is no proof of authority given by the applicant Company for the said Zack Newton to act as such.ii.That the applicant and/or its advocates M/S Murunga Mwangi & Associates blatantly flaunted this honorable tribunal’s previous directions to file and/or serve written submissions, and attend court on the said date. That furthermore, the directions were given in the presence of both parties and thus the applicant’s advocates mistakes are inexcusable.iii.That no Notice of Change and/or Notice of Appointment of Advocates as required by law has been filed in this honorable tribunal and neither has the same been attached as an annexure to the said application, nor has leave been sought for the tenant’s current advocates to come on record. Therefore, the application is fit for striking out.iv.That the locks securing the entrance to the suit premises, including the permanently erected structures, which were put in place by the applicant herein are still in place to date. The respondent/landlady refers to the previously filed photographs taken in the presence of inspectors showing the applicant’s representative unlocking the said locks, annexed as “LHMW2”.v.That seeing that the applicant has been in gross breach of the lease agreement dated 30th August, 2021, by failing to pay rents when due and including the currently outstanding rents and by erecting structures on the property and encroaching into the respondent’s adjacent property without consent, the respondent is incurring financial losses and facing emotional anguish.vi.That the court dismisses the application dated 8th October, 2023 and applicant be ordered to permanently vacate the suit premises immediately upon conclusion of this suit, leaving it restored to its original condition and having paid rent arrears and/or mesne profits following their breach of the lease agreement.

4. At a court hearing on 7th November, 2023, this tribunal ordered that the application be canvassed by way of written submissions. Both parties complied with the tenant/applicant filing its submissions dated 10th November, 2023 and the respondent/landlady filing hers dated 21st November, 2023. We shall consider both parties’ submissions while dealing with the issues for determination.

B. Issues for Determination 5. The following are the issues for determination; -a.Whether the applicant/tenant is entitled to the orders sought in the application dated 8th October, 2023. b.Who shall bear the costs of the application?

Issue (a) Whether the applicant/tenant is entitled to the orders sought in the application dated 8th October, 2023. 6. The applicant/ tenant has approached this tribunal mainly seeking for setting aside of the orders issued on 26th September, 2023 where the court ordered that the application dated 6th June, 2023 be dismissed for want of compliance by the applicant/ tenant with the previous orders by this tribunal and for want of attendance.

7. The orders issued on 26th September,2023 were as follows; -“"Matter dismissed for want of compliance with previous directions by tenant.Costs of Ksh. 20,000 awarded to the landlord.Interim orders discharged.”

8. The Landlord’s main contention on this issue is that the firm of Onindo Onindo & Associates Advocates has not complied with the mandatory requirements of the law during the filing of this application which entails filing a notice of change of advocates.

9. It is our opinion that this is not a major issue as the said firm filed the Notice of Change of Advocates dated 10th November, 2023 albeit later in the proceedings.

10. The landlord/respondent has also raised an issue about one Zack Newton stating that there is no proof showing that Zack Newton, who has deposed the supporting affidavit herein is a director of the applicant Company. We note that the said Zack Newton is the one who had deposed the affidavits for the applicant Company from the genesis of this suit and therefore, no evidence is required for the said Zack Newton to prove that he is the director of the applicant Company at this point in the proceedings. In any event, it is not mandatory that a director of a Company swears affidavits in court proceedings. Any person with authority of the Company can do so. There is no contest as to whether the deponent had authority to do so.

11. The tenant applicant in his submissions avers that it was not the fault of the tenant not to attend the tribunal’s session on 26th September, 2023 and that the advocate’s mistakes should not be visited upon the tenant.

12. We agree with the averments above and are guided by the case of Belinda Murai & 6 Others –Vs- Amos Wainaina[1978] eKLR in which Hon Madan JA (as he then was) defined what constitutes a mistake as follows:“A mistake is a mistake. It is no less a mistake because it is an unfortunate step. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because of a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but ought certainly to do whatever is necessary to rectify if the interest of justice so dictate.” [own emphasis].From what I have stated above it is in the interest of justice that the party be given an opportunity to be heard.”

13. The tenant/applicant has also referred to the Case of HAM VS SOS-Civil Appeal No. 25 of 2020 in his written submissions, which we have considered.

14. In the interest of justice, we find that this application has merits and we shall order that the application be allowed.

Issue (b) Who shall bear the costs of the application? 15. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. We shall order costs to the landlady/respondent in this matter as they have suffered inconvenience with the filing of this application yet the matter had already been dismissed by this tribunal.

C. Orders 16. In conclusion, the following orders commend to us; -a.The application dated 8th October, 2023 is hereby allowed with costs to the respondent/landlady.b.The reference shall proceed to hearing on merit.c.Status quo to be maintained pending hearing of the reference.d.Costs of Ksh.15,000 to the respondent/landladyIt is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26th JANUARY 2024HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON) BUSINESS PREMISES RENT TRIBUNALHON GAKUHI CHEGE - (MEMBER)In the presence of:Onindo for Tenant/ApplicantNo appearance for Landlady/Respondent