[2021] KEBPRT 291 (KLR)
The Tribunal found that although the Landlord did not provide documentary evidence of his counsel's illness or an affidavit from the instructed advocate, the Tenant did not contest the application or the facts presented. In the interests of justice and to allow the matter to be determined on its merits, the Tribunal...
Source-derived case information.
- Citation
- [2021] KEBPRT 291 (KLR)
- Parties
- Tenant: Jitash Doongarsi Jamnadas t/a Bhatia Radio House; Landlord: Ahmed Jaffer
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 150 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed; dismissal order set aside; application reinstated
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Non Appearance of Counsel, Business Premises Rent, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jitash Doongarsi Jamnadas t/a Bhatia Radio House
Tenant
Ahmed Jaffer
Landlord
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the orders made on 20th November 2019 dismissing the Landlord's application for want of prosecution should be set aside.
- 2 Whether the Landlord's application dated 9th October 2019 should be reinstated for hearing on its merits.
- 3 Whether the reasons for non-appearance of counsel constitute sufficient cause to set aside the dismissal.
Ratio Decidendi
The Tribunal found that although the Landlord did not provide documentary evidence of his counsel's illness or an affidavit from the instructed advocate, the Tenant did not contest the application or the facts presented. In the interests of justice and to allow the matter to be determined on its merits, the Tribunal accepted the explanation for non-appearance as sufficient cause. Consequently, the orders dismissing the Landlord's application were set aside, and the application was reinstated for hearing. The Tribunal further ordered that the previous injunctive orders remain in force pending the hearing and determination of the reinstated application.
Court Disposition
application allowed; dismissal order set aside; application reinstated
Orders
- The orders made by the Tribunal on 20th November 2019 are set aside.
- The Landlord's application dated 9th October 2019 is to be fixed for hearing on a priority basis.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 150 OF 2018 (MOMBASA)
JITASH DOONGARSI JAMNADAS T/A
BHATIA RADIO HOUSE...................................TENANT
VERSUS
AHMED JAFFER........................................LANDLORD
RULING
1. The Landlord’s application dated 27th November 2019 seeks the following orders;
a. Spent
b. That there be a stay of the orders made on 20th November 2019 pending the hearing and determination of this application inter partes.
c. That the orders made on 20th November 2019be set aside and the Landlord’s application dated 9th October 2019 be reinstated for hearing and determination on merits.
d. Costs.
2. The grounds upon which the application is brought and the affidavit in support thereof may be summarized as follows;
a. That on 20th November 2019, the Applicant’s application dated 9th October 2019 was dismissed for want of prosecution.
b. That on the material day, counsel for the Landlord, Mr Mutisya was sick.
c. That Mr Mutisya had instructed Mr E.K. Mutua to proceed with the matter on his behalf but Mr Mutua was held in a traffic jam and by the time he arrived in court, the matter had already been called out and dismissed.
d. That the above is a mistake of counsel.
e. That the Landlord stands to suffer substantial and irreparable loss.
3. The Tenant, as far as I can peruse the court records has not filed any replies to the Landlord’s application dated 27th November neither has the Tenant filed any submissions in opposition to the said application.
4. On 12th November 2018, the Tribunal issued injunctive orders against the Landlord pending the hearing of the case, the Landlord was also compelled to accept rent at a set rate of Kshs 10,000/- per month pending the hearing and determination of the case and the Tenant ordered to pay the Tenant the costs assessed at Kshs 25,000/-. The Landlord was absent on the date that these orders were issued.
5. It is the above orders which the Landlord sought to set aside by his application dated9th October 2019and which application was dismissed on 20th November 2019.
6. The instant application now seeks a setting aside of the orders issued on 20th November 2019 and a reinstatement of the application dated 9th October 2019 for hearing.
7. The reasons given for the absence of counsel for the Landlord have been set out in the affidavit of Stephen M. Mutisya Advocate.
8. Mr Mutisya has stated that he was sick on the material day and therefore instructed Mr E.K. Mutua to hold his brief and proceed with the matter.
9. Mr Mutua, it has been stated, did not make it to court due to a traffic jam. The Applicant has not provided any evidence that his counsel was unwell on the material day neither has Mr E.K. Mutua advocate sworn any affidavit to confirm that indeed he had instructions in the matter, that he was ready to proceed and that his non-appearance in court was due to a traffic jam.
10. These matters though have not been contested by the Tenant/Respondent and in the wider interests of justice, I am willing to believe the facts as set out in the affidavit of the Landlord’s counsel.
11. I will in the premises make the following orders;
a. That the orders made by the Tribunal on 20th November 2019 be and are hereby set aside.
b. That the Landlord’s application dated 9th October 2019 be fixed for hearing on a priority basis.
c. The orders issued by the Tribunal on 18th October 2018 to remain in force, pending the hearing and determination of the Landlord’s application dated9th October, 2019.
d. Costs in the cause.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this17thday of September, 2021 in the presence of Mr Mutisyafor theLandlordand in the absence of theCounselfor theTenant.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL