[2022] KEBPRT 108 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E019 OF 2021 (NYERI)

JEDIDAH WANGU FREDRICK...................................................LANDLORD/RESPONDENT

VERSUS

JANE NYAGUTHII MURIUKI.....................................................LANDLADY/RESPONDENT

RULING

1. Through a notice of motion dated 4th August 2021, the Tenant is seeking in material part for review or setting aside of the judgment and orders given by this Tribunal on the 15th day of July 2021 and costs of the application.

2. The application is supported by the tenant’s affidavit of even date and the grounds set out on the face thereof. It is the tenant’s case that this honourable tribunal gave judgment and orders against her without giving her a chance to present her case. The landlady was allowed to enter and repossess plot no. 43 B, Kagumo which was in her occupation.

3. It is further contended that the tenant was never served with the landlord’s notice dated 7th April 2021 nor any pleadings in this case.

4. She further states that the landlady failed to disclose that there existed Tribunal case no. 20 of 2020 between the same parties and subject matter.

5. She pleads that the landlady instituted and prosecuted the application without serving her with any document in order to circumvent the rules of natural justice and procured the impugned orders to her detriment.

6. The application is opposed through a replying affidavit of the landlady/Respondent sworn on 31st August 2021 wherein it is deposed that the application had been overtaken by events as there was no longer a landlord/tenant relationship.

7. The Respondent deposes that the tenant was served with notice of termination of tenancy which service was duly acknowledged. The notice is attached as annexture ‘JWF-1’. She did not communicate within one month of her willingness to comply with the notice and neither did she file a reference before this Tribunal and the tenancy terminated on 7th May 2021.

8. The Respondent filed an application seeking to enter and repossess the suit premises and was issued with the order. The same was served upon the tenant on 16th July 2021. The tenant failed to comply with the orders as a result of which an application dated 27th July 2021 was filed seeking assistance of OCS Kagumo Police Station during the process.

9. The exercise was conducted on 9th August 2021 and an inventory of the tenant’s properties was filed before this Tribunal. The landlord had already taken possession and it is her case that the tenant should look for alternative premises to conduct her business.

10. The application was ordered to be disposed of by way of written submissions and both parties complied.

11. The issues for determination are:-

(a) Whether the tenant/applicant is entitled to the reliefs sought.

(b) Who is liable to pay costs?

12. The principles upon which an application for setting aside an ex-parte judgment or order were long settled by the Locus Classicus Case of Shah – vs- Mbogo & another (1967) EA 116 at page 123 letter B herein it was held thus:-

“………..the principles governing the exercise of the court’s discretion to set aside a judgment obtained ex-parte. This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, Inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the cause of justice”.

13. The application before me is premised upon the ground that the applicant was not served with the pleadings. I have perused the court record and have seen an affidavit of service by Alice Wanjiku Ndungu, an advocate of the High Court of Kenya in which she deposes that on 12th June 2021 she served the applicant with the application dated 2nd June 2021 and an order dated 11th June 2021 indicating that the matter was coming up for hearing on 15th July 2021.

14. The applicant has not disputed the contents of the said affidavit of service neither did she apply for cross-examination of the advocate on its contents. As such the contents thereof remain uncontroverted.

15. Secondly, the applicant has not disputed service of the notice of termination of tenancy which is endorsed by one Maureen Muri neither does she dispute service of the order given on 15th July 2021 which is endorsed by one Sharon Nyakio on 16th July 2021.

16. As no reference was filed to challenge the termination notice, the same took effect in line with section 10 of Cap. 301 with the result that the tenancy relationship terminated as expressed therein.

17. I finally note that the tenant has not disputed the fact that she was no longer in possession of the suit premises and her application had been overtaken by events. The eviction having overtaken pursuant to the Tribunal order and the landlord having taken possession cannot be reversed in line with the decision in the Case of Re Hebtulla Properties Ltd(1979) eKLR at page 9/11 wherein Section 12(1) (e) of Cap. 301 Laws of Kenya was discussed. The court found that It provides the tribunal with power to make orders, upon such terms and conditions as it thinks fit for the recovery of possession and for the payment of arrears of rent and mesne profits and concluded as follows:-

“The recovery of possession must here mean and means, recovery of possession by and not from the landlord. The legislature deemed it necessary to empower the tribunal to order recovery of possession by the landlord. If the reverse had been intended, it would have been expressly provided since the intention of the Act is to protect tenants. In my opinion it is therefore clear that Parliament never intended that the tribunals would have power to order recovery of possession by a tenant where such possession has been seized by a landlord and it never gave that power to the tribunal. That power cannot be implied”.

18. Flowing from the foregoing analysis, I am afraid that the orders sought by the applicant cannot serve any useful propose as a court of law does not give orders in vain. In absence of a reference against the termination notice, there cannot be any good basis to continue with the instant proceedings.

19. In conclusion therefore, the application dated 4th August 2021 is hereby dismissed with costs.

20. The interim orders given on 9th August 2021 are hereby discharged and/or vacated.

21. The landlord’s costs for the application shall be assessed in the normal manner.

IT IS SO ORDERED.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 13TH DAY OF JANUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL IN THE PRESENCE OF:-

MISS NDUNGU FOR THE LANDLORD

TENANT/APPLICANT PRESENT IN PERSON.