[2024] KEBPRT 384 (KLR)

Husein v Bungoma Muslim Association (Tribunal Case E137 of 2023) [2024] KEBPRT 384 (KLR) (1 March 2024) (Ruling)

Neutral citation: [2024] KEBPRT 384 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E137 of 2023

Gakuhi Chege, Chair & J Osodo, Member

March 1, 2024

Between

Ali Husein

Claimant

and

Bungoma Muslim Association

Respondent

Ruling

1. Before this Tribunal is a notice of motion dated17th October 2023 filed by the Landlord/Respondent pursuant to provisions of Order 10 Rule 11 of the Civil Procedure Rules and Sections 1A,1B, 3 and 3A of the Civil Procedure Act and all the enabling provisions of the law.

2. The Respondent has sought for interim stay of execution of the orders made on December 10, 2023 pending the hearing and determination of the application inter-partes. It further seeks for setting aside of the proceedings of 12/10/2023 and all consequential orders made herein on 12/10/2023 against it and that it be granted leave to fie and serve its defence out of time.

3. The application is grounded upon the affidavit of Omar Abdi Chesula and the following other grounds-i.That the Respondent/Landlord remains ready and willing to defend the claim.ii.That the counsel who was holding brief by then indicated that the suit herein was slated for hearing on 2/11/2023. iii.That the Respondent's advocate erroneously diarized the matter for 2/11/2023 instead of 12/10/2023. iv.It is in the interest of justice that the claim herein be heard on merit.v.Failure to attend court when the matter was slated for hearing on the part of defence was not deliberate save for mis-diarizing of the matter.vi.That the Respondent’s defence and counter claim is meritorious.vii.It is in the interest of justice that the Respondent should not be condemned unheard.viii.That failure to attend court when the matter was slated for hearing on the part of Respondent was not deliberate but due to mis-diarizing.ix.That the mistake of an advocate should not be visited upon an innocent litigant.x.That the Respondent has brought the application expeditiously without any undue delay.xi.That the claimant shall not suffer any prejudice.

4. The same grounds are repeated in the supporting affidavit of Omar Abdi Chesula wherein it is deposed that the Respondent is ready and willing to defend this suit to its logical conclusion if granted leave to file its defence.

5. That on 12/10/2023 the Respondent was not aware that this suit had been fixed for hearing and that failure to attend court when the matter was slated for hearing was not deliberate but was due to erroneous diarizing of the matter on 2/11/2023 instead of 12/10/2023. The Respondent attaches as annexure “BMA-1” an extract of its advocate’s diary together with a draft defence and counter-claim marked “BMA-2”.

6. The application is opposed through the replying affidavit of the Claimant sworn on 17th October 2023, wherein he deposes that the same is an abuse of the court process which was filed out of malice and merely meant to delay justice.

7. He further deposes that he is a tenant of Jamia Mosque, Bungoma and his tenancy has subsisted since the year 1991 to date which amounts to a period of 32 years.

8. The tenant filed this suit against the Respondent herein and the same was scheduled for hearing on 11th August 2023, which date was duly served upon the Respondent. On 11th August 2023 when the matter came up for hearing, the Respondent through its Advocates appeared and applied for time to file the necessary pleadings which application was allowed subject to filing of the same within 14 days from the said date. A hearing date thereof was set for 12th October 2023.

9. When the matter came up for hearing on 12th October 2023, the Respondent did not appear in Court neither were his Advocates present and it had not filed a defence which prompted this Court to proceed ex-parte and make orders in favor of the tenant.

10. As such, the tenant deposes that the Respondent's Counsel cannot allege to have mis-diarized the hearing date when he was represented in Court on 11th August 2023 when the date was given by the Court.

11. The Respondent is accused of having deliberately failed to heed to the Court's direction to file a defence within the given time of 14 days and the draft statement of defence annexed to its application is attacked as a mere afterthought which is meant to delay the Court's process.

12. According to the tenant, the deponent in the Respondent's supporting affidavit one Omar Abdi Chesula is not an elected official or representative of Bungoma Muslim Association (BMA) and has no express and/or implied authority to sue on behalf of and represent Bungoma Muslim Association in any legal matters as deposed in an affidavit sworn by the BMA elected officials dated 22nd November 2023 annexed to the replying affidavit and marked as “HA-1”.

13. According to the tenant, Omar Abdi Chesula does not appear in the list of duly elected officials and is not the Secretary of Bungoma Muslim Association and therefore does not have the locus standi to sue on behalf of the Association as per the letter by the Registrar of Societies declaring the names of officials dated 19th October 2023 annexed and marked as “HA-2”.

14. The tenant deposes that the application is an afterthought which has been made in bad faith and that the applicant has not come before this Court with clean hands and the same is meant to drag this case before Court for a prolonged period of time without any justifiable cause. It is therefore pleaded that it was in the interest of justice that the Respondent's application be dismissed with costs as the Respondent herein has been granted enough chances to file its pleadings and appear before Court to no avail and has deliberately failed to do so with the knowledge that he has no arguable defence to file before the Court and that the annexed defence is a mere sham.

15. According to the tenant, the law dictates that matters should be dispensed with in a timely manner and that matters ought to come to an end.

16. The matter was directed to be canvassed by way of written submissions and both Counsels complied.

17. The following issues arise for determination-a.Whether the Respondent is entitled to the reliefs sought in the application dated 17th October 2023. b.Who is liable to pay costs of the application?

18. On 11th September 2023, this matter came up in court when Counsel for the Respondent sought for time to file a response. This Tribunal allowed the application and gave the Respondent 14 days within which to do so. The matter was then slated for hearing on 12th October 2023 when there was no appearance on the part of the Landlord/Respondent. As such, the tenant’s complaint was allowed with costs of Kshs 5,000/=.

19. The Respondent has now approached this Tribunal seeking inter-alia to set aside the orders of 12th October 2023 made in favor of the tenant. The application is supported by the affidavit of one Omar Abdi Chesula who according to the tenant is not an official of the Landlord. The tenant has annexed a letter dated 19th October 2023 from the Registrar of Societies to prove that the said deponent is not indeed an official of the Landlord Association. He describes himself as the Secretary to the landlord Association in the supporting affidavit but it turns out that he is not one. This revelation is no doubt fatal to the application by the Landlord as no further affidavit was filed to clarify his capacity and authority to make the application before court.

20. We have also seen the affidavit of the registered officials of the Landlord Association sworn on 22nd November 2023 disowning the notice issued to the tenant herein as a nullity and it is therefore clear that the said Omar Abdi Chesula is a busy body who had no capacity to issue the notice to terminate tenancy neither does he have capacity to defend the instant proceedings on behalf of the Association.

21. Consequently, the application by the said Omar Abdi Chesula is incompetent and bad in law as submitted by the tenant herein. That being so, it is not necessary to consider the principles for setting aside ex-parte judgements.

22. The authority cited in the Respondent’s Counsel’s submissions in the case of Bank of Africa Kenya Limited v Put Sarajevo General Engineering Co. Ltd & 2 Others [2018] eKLR which followed the court of appeal decision in Belinda Murai & others v Amos Wainaina [1978] eKLR constitutes good law but is not applicable to the instant case since the alleged mistake of counsel is not the sole basis for dismissal of the current application. What is critical is that the application was brought by an incompetent person on behalf of the Landlord Association and the registered officials thereof have disowned the notice to terminate tenancy served upon the tenant. The application’s foundation was therefore shaken by the said turn of events and there is no basis upon which we can allow the matter to proceed one more step.

23. In the premises, we find and hold that the said application has no merit and is hereby dismissed with costs to the tenant. The said costs which are assessed at Kshs 10,000/= shall be met by the said Omar Abdi Chesula personally.

24. In conclusion, the following final orders commend to us-a.The application dated 17th October 2023 is hereby dismissed with costs to the tenant.b.The said costs assessed at Kshs 10,000/= shall be personally paid by Omar Abdi Chesula.c.The orders of 12th October 2023 are hereby affirmed.It is so ordered.

DATED, SIGNED & VIRTUALLY DELIVERED THIS 1st DAY OF MARCH 2024HON. GAKUHI CHEGE - PANEL CHAIRPERSONHON. JOYCE OSODO - PANEL MEMBERIn the presence of-Tenant in personIn absence of landlord