[2024] KEBPRT 257 (KLR)

Jawanga Investments Ltd v S. K. Shah t/a Levins (Tribunal Case E906 of 2023) [2024] KEBPRT 257 (KLR) (Civ) (29 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 257 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E906 of 2023

N Wahome, Member

February 29, 2024

Between

Jawanga Investments Ltd

Landlord

and

S. K. Shah t/a Levins

Tenant

Ruling

1. This Ruling concerns the Notice of Motion Application dated the 14/11/2023 by the Applicant/Tenant and the Respondent/Landlords Notice of Preliminary Objection dated 28/11/2023. The Notice of Motion seeks for the following reliefs,i.Spentii.That in the interim this Honourable court be pleased to stay the orders I served on the 4th October 2022 and served upon the Tenant/Applicant on the 10/11/2023 vacating the Business Premises and/or deliver vacant possession of the ground floor to the Applicant forthwith in the property known as LR No. 209/525/20 with a building known as Alshons Latema Road in the CBD Nairobi pending the hearing and determination of this Application inter-partes.iii.That after the inter-partes hearing this Honourable court be pleased to set aside and/or vary the orders issued on the 4th October, 2023. iv.That this Honourable court be pleased to make any other and/or further orders that are just to grant in the circumstances of the case and in the interest of justice.v.That the costs of this application be provided for.

2. On the other hand, the landlord’s preliminary objection was on the following grounds:-i.The Hounarable Tribunal lacks jurisdiction to entertain and hear this matter or application as the Tenant vacated and/or was evicted from the business premises shop on 10/1/2023 which he occupied before.ii.There exists no relationship governing or connecting the landlord and the Tenant herein on any tenancy due to vacating the business premises,.iii.The business premises being the subject matter herein is already in possession and occupancy by another Tenant being a protected Tenant.iv.The Honourable Tribunal lacks jurisdiction thus any subsequent proceedings will be a nullity.

3. In support of their respective cases, the parties filed several affidavits and finally submissions. On her part the Tenant/applicant filed the following:a.The further affidavit sworn on the 30/11/2023 by Mayor K. Shah.b.The Replying Affidavit to the Notice of preliminary objection which was sworn by Mayor K. Shah on 7/12/2023. c.The supplementary Affidavit sworn by Mayor K. Shah sworn on the 1/2/2024 and,d.The Tenant/Applicants submissions dated 1/2/2024.

4. On its part, the landlord/Respondent filed the following documents in support of its case,-a.The Replying Affidavit sworn by Charles Waweru on the 29/11/2023. b.The supplementary Affidavit sworn by Charles Waweru on the 5th December 2023. c.The submissions dated the 10th January, 2023.

5. I will now endeavor and attempt to capture the respective cases for both the Applicant/tenant And The Respondent/landlord.

Case For The Applicant/Tenant 6. The Tenant in its dispositions, she asserted that:-i.She was never served with the notice of termination dated 21/6/2023 and only came to learn of the same on the 10/11/2023 when she was being evicted.ii.The Application that culminated to her eviction dated 15/9/2023 was never served to her,iii.The Affidavit of service that led to this Tribunal issuing the orders that it did on the 3/10/2024 was a fraud and neither herself or her agents were ever served with any court processes.iv.Despite the landlord and her counsel knowing her contacts, they gave the wrong information to the court so that the court updates on the case it had filed could not reach her.v.She has had several disputes with the landlord including BPRT case No.E032 of 2021 where the respondent withdrew the same and paid her costs.vi.There would be no reason whatsoever for her to ignore court processes and that if she had been made aware of the same she would have defended her position as a protected tenant.vii.The order to deliver vacant possession did not confer on the Respondent a licence to evict her.viii.On the 6/11/2023, the Respondent received from her the rent for the month of November, 2023 when he had already acquired orders to regain possession of the demised premises.ix.Previously, she had responded to any communication by the respondent or his advocates.x.She never gave vacant possession of the premises and that she was evicted but left all her merchandise in the demised premises.xi.No other tenant has occupied the demised premises and that the same should be restored to her.xii.Mayor K. shah was her Attorney and held the power of Attorney dated 25/6/20211.

7. The Applicant therefore sought for orders to be allowed to defend the respondent’s case filed on 15/9/2023 by setting aside the ex-parte orders made on the 3/10/2023 and issued on the 4/10/2023.

8. The evidence of the Landlord on the other hand is that:i.The Tenant was served with the notice of termination dated 21/6/2023 and that she did not file any objection nor reference thereof opposing the same.ii.The notice was duly served on the Tenant as per the Affidavit of service sworn on the 14/9/2023. iii.The Tenant was further served with Notice of motion application dated 15/9/2023 and an affidavit of service sworn on the 28/9/2023 testifies to that:iv.There was no response to the termination notice nor to the application and thus the orders of the court made on the 3/10/2023. v.Pursuant to the said orders, the applicant was removed from the demised premises on the 11/10/2023 and the Landlord/Tenant relationship terminated.vi.A new tenant has taken forte at the demised premises and this Tribunal has therefore no jurisdiction to preside over these proceedings.vii.On eviction, the landlord ensured that all the Tenants goods/merchandise which had been abandoned in the streets were put in safe custody.viii.In carrying out renovations at the premises, it had been licensed by the Nairobi County government.ix.The parties in their submissions addressed various issues in support of their respective positions. On her part, the Tenant submitted that,a.That the orders made on the 3/10/2023 and issued on the 4/10/2023 were prejudicial to her as she was never afforded a chance to be heard.b.The Affidavits of service were a fraud and cultivated to defeat her justice.c.That as at the time of the purported eviction and filing of the present application she had paid the rent for November, 2023. d.She has never left the demised premises and no 3rd party had gained ingress into the premises.e.The licence issued to the respondent was for Kshs.4000/- for minor repairs which could not require the surrender of the premises,f.That over and above BPRT case No.E032/21, they had also litigated under BPRT case No. 680 of 2011. g.She has been protecting the family interests for the last over 12 years and could not have allowed the present suit pass if there was service.h.The Tenant therefore sought that her application dated 14/11/2023 be allowed and the preliminary objection dated 28/11/2023 be dismissed.

11. The landlord on its part submitted that this court had no jurisdiction to carry out these proceedings and put reliance on the case of OwnersofMotor Vessel “Lillians” versus Caltex Oil (Kenya) Ltd (1989) KLR1. Support on the same issue was also sought from the case of Mobil energy Limited v Greenspan Mall Limited (2021) eKLR.

12. The Respondent further cited Section 2 (1) of the Act to fortify the position and cited the case of Alriaz International Limited v Ganjoni Properties Limited (2015) eKLR to expound on the said section 2(1) of the Act. The Respondent also relied on the following cases in support of the position,(i)Johnstone Walubengo Kibunguchi v Rebecca Osimbo Seruya (2021) e KLR,(ii)Republic v Chairperson Business Premises Rent Tribunal at Nairobi Ex-parte Suraj Housing and Properties Ltd and 2 Others (2016) eKLR which cited with the approval the case of Pritam v Ratilal and Another HCCC 1499 of 1970 EA 560,(iii)Mombasa Gas Supplies Limited v Registered Trustees of National Union of Kenya Muslims of Province and Caledoma v Kenya National Examination Council (2002) EA.

13. The Respondent also raised the issue of locus standi on the question whether Mayor K. Shah had capacity to swear the Affidavits that he did without the power of Attorney from the Tenant. It was the landlord’s position that without the power of Attorney, all the proceedings herein by the Tenant were rendered a nullity without any effect of law. The following decided cases were cited to support that position,(i)Alfred Njau and other v City Council of Nairobi (1982) KAR 229. (ii)Julian Adoyo Ongunga v Francis Kiberenge Abano Migori Civil Appeal No. 119 of 2015 andv.Francis Mwangi Mugo v David Kamau Gachago (2017) eKLR.

14. The Landlord therefore sought that the Applicant’s Application be dismissed and that the Applicant be be condemned to pay the costs of these proceedings.Having evaluated all the evidence and materials placed before this court, am of the view that the issues for determination in this matter are the following:-A.Whether this court has jurisdiction.B.Whether the Applicant’s application is merited.C.Who should bear the costs of these proceedings.

15. Before I dwell on the issues identified above, There is need to address the question of whether Mayor K. Shah had authority to swear the Affidavits that he did and the letimacy of the Tenant’s case. The issue for the landlord is that Mayor K. Shah required a power of Attorney to undertake the obligations that he did in this suit. That question was answered by the supplementary affidavit dated 1/2/2024 and which was admitted by this court as being properly on record. In the affidavit, was attached a power of Attorney dated 25/6/2021 donating authority and or power to Mayor K. Shah to undertake court proceedings as those before this court among other powers. It is therefore my determination that the question of locus standi has been settled in favour of the Applicant.

Issue A. Whether this court has jurisdiction to try this matter. 16. Section 2(1) of the Act donates jurisdiction to this court and further the powers of this court as exercised under Section 12 of the Act have the former as the fulcrom where the activities of this tribunal revolves.Section 2(1) provides that ,“A controlled tenancy means a tenancy of a shop, Hotel or Catering Establishmentsa.Which has not been reduced into writing.b.(i)is for a period not exceeding five years, orii.Contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof oriii.Relates to premises of a class specified under subsection (2) of this section.

17. It is plain and clear that both parties agree that there was a controlled tenancy in subsistence between them. To the landlord the same ended on the 10/11/2023 but to the Tenant, it subsists to date. That is their point of departure. By her further affidavit sworn on the 30/11/2023, the Tenant annexed Annexure No. 1 to confirm payment of rent for the month of November 2023.

18. It is inexplicable that the Landlord received the said rent without qualms and there is no evidence that same ever returned to the Tenant. Indeed a receipt was issued in acknowledgement of the same. What puzzles me is the reason why the landlord received the rent when enjoying orders of vacant possession made and issued on the 3/10/2023 and 4/10/2023 respectively.

19. Having paid the rent for November 2023 and also filed the present application on the 14/11/2023 I cannot deduce a vaccum in the landlord/Tenant relationship between the parties Section 2(1) on interpretation, defines a Tenant as,-“In relation to a Tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding and includes a sub-tenant”.

20. It is therefore my finding that though the Applicant may not be in actual possession of the holding and or demised premises, she is the person entitled to the Tenancy and this court has therefore the jurisdiction to preside over these matters before it.

Issue No. B- Whether the Applicants application is merited. 21. The Applicant sought for the stay and setting aside of the orders made and issued on the 3/10/2023 and 4/10/2023 respectively. I do appreciate the reality that my brother Hon. Mike Makori did issue orders to maintain status quo as at 29/11/2023. I further appreciate that he issued further orders on the 1/12/2023 to the following effect,“Status quo as at toady the 14th day of December 2023 is that the premises is under renovation and the same status shall be maintained pending further directions to be issued by Hon. Ndegwa on the 11th December, 2023. Neither the Applicant or the new tenant shall enter the premises”.

22. By those orders, the order to stay the orders aforesaid as made and issued on the 3/10/2023 and 4/10/2023 sufficed by implication in that the demised premises were to remain vacant pending determination of the present Application. Therefore that order is overtaken by the events and need not address the same.

23. The Applicant has sought that the orders issued on the 4/10/2023 be set aside. The implication of that is that she will be afforded an opportunity to defend the application dated 15/9/2023 if she succeeds in this Application.

24. The contention by the Applicant is that she was never served with the notice of termination of tenancy, The Application thereof and even the hearing notice for the hearing dated 3/10/2023. She argued that the Respondent and the Advocate thereof deliberately failed to provide her contacts to this court when filing these proceedings to ensure that she could also not get updates on the case from the court.

25. The Applicant further asserted that she has had several engagements with the Respondents including BPRT case Nos. 680/2021 and E032 OF 2021 which were all effectively defended and could not have simply ignored the court processes in the present instance. It was her contention that the Affidavit of service in respect of the purported service of the notice of Termination, service of the landlords application and service of hearing notice for the 3/10/2023 were all deceitful and a forgery.

26. On its part, the Respondent asserted that the Applicant was properly served but decided to ignore the court processes. I have keenly looked at the Affidavits of service by Mathew Mutsotsi sworn on 14/9/2023 and 28/9/2023 and what comes out clearly out of the same is that the process server never became aware that the Tenant was a lady. There is also no explanation in the affidavit of service on the whereabout of the Tenant and the reason the process server was serving her agent. The affidavits of service are very elaborate but miss out on the most fundamental issue on identifying the prospected recipient of his subject of the process he was to purportedly effect. I highly doubt that the Tenant was ever served with the court processes. If the process server ever ventured into the demised premises, or served the court processes, he would have known better than what we have in his said Affidavits of service.

27. Even if I was to find that the Tenant was properly served, the courts employ abundance of caution in denying a party an opportunity of being heard. In the case of Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd v Augustine Kubede (1982-1988) KAR . The court of appeal held that,“The court has unlimited discretion to set aside or vary judgement entered in default of appearance upon such terms as are just in light of all facts and circumstances prior and subsequent and of the subsequent merits of the parties”.

28. In Yooshin Engineering corporation v Aia Architects Limited Civil Appeal E074 of 2022 (2023) KECA 872 KLR:-It was held that,“Where the judgement is irregular in the service that service was not effected or that the judgement was improperly or prematurely entered, then such judgement is irregular and must be set aside as a matter of right. It does not matter whether a defendant has a defence or not”.

29. In the case of Gerita Nasipoli Bukunya & 2others v Attorney General (2019) eKLR it was held that:-“There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them”.

30. Finally in the case of David Gicheru v Gicheha Farms Ltd and Another (2020) eKLR the court held that:,“Fundamental duty of the court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”.

31. In conclusion on this issue, the Civil Procedure Rules at order 10 Rule 11 provides that,-“Where judgement has been entered under this order, the court may set aside or vary such judgement and any consequential decree or order upon such terms as are just”.Am persuaded that the principles in play herein above as quoted should also find Application in the situation at hand. I therefore do find that the Applicant’s Application dated 14/11/2023 is merited and allow the same in terms that the orders made on the 3/10/2024 and issued on the 4/10/2024 and all consequential orders thereof will be set aside.

Issued No. C- Who should bear the cost of these proceedings. 32. I note that there is the Application dated 15/9/2023 and a reference of the same date. There is therefore a long way to cover in this matter. Therefore the orders that commend to me are that costs will abide the outcome of the suit herein.

33. In conclusion, from evidence on record is that the Tenant’s goods and merchandise were carted away from the demised premises. As per my earlier findings, the Tenant is entitled to the demised premises and herself and the said merchandise should be unconditionally restored in the demised premises being the ground floor of Title No. LR 209/525/20 within the building known as Alshons, Latema building Road in the CBD of Nairobi city.

34. I further make the following final orders:-(i)That the notice of preliminary objection dated 28/11/2023 is dismissed.(ii)That the Application dated 14/11/2024 is allowed in terms that the orders made on the 3/10/2023 and issued on the 4/10/2023 are set aside in their entirety and all consequential orders thereto.ii.That the Tenant/Applicant is entitled to the demised promises being Title No. LR 209/525/20 within the ground floor in the building known as Alshons, Latema Road at the Nairobi City and the Respondent is directed to allow her free access to the same and further restore her goods/stock/merchandise carted away from the said premises within seven (7) days of the date of this Ruling.iii.The Tenant has 14 days to respond to the reference and application herein and dated the 15/9/2024 and serve the same to the Respondent.iv.This matter shall be mentioned on the 18/3/2024 for further directions.Those are the orders of the court.

RULING DATED SIGNED AND DELIVERED VIRTUALLY AT KAKAMEGA THIS 29TH DAY OF FEBRUARY 2024. HON. NDEGWA WAHOME MBS - MEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of Mr. Mwaura for the LandlordNo appearance for the Tenant/RespondentHON. NDEGWA WAHOME MBS - MEMBERBUSINESS PREMISES RENT TRIBUNAL