[2021] KEBPRT 113 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 653 OF 2019 (NAIROBI)

JOHN PETER KAMAU RUHANGI.................................LANDLORD/RESPONDENT

VERSUS

JOHN NGUGI KABOGO T/A

CLUB SIDAI OLENG..................................................................TENANT/APPLICANT

RULING

1. The notice of motion dated 2nd July 2021 brought by the Applicant John Ngugi Kabogo seeks the following orders;

a. Spent

b. That leave be granted by the Tribunal for the firm of Mwaniki Gachoka and Co advocates to come on record on behalf of the Applicant herein Mr John Ngugi Kabogo T/A Club Sidai Oleng.

c. That the honourable Tribunal be pleased to set aside the orders issued on 24th June 2021 pending the hearing and determination of this application.

d. That the honourable Tribunal be pleased to stay execution of the orders issued by the honourable Tribunal on 28th May 2020 pending the hearing and determination of this application.

e. That costs of this application be in the cause.

2. The application is brought on the grounds on the face of the said application which I have considered in this ruling and the affidavit of John Ngugi Kabogo which I summarize as follows;

a. That on 1st July 2021, the Applicant was served with an order issued on 24th June 2021 which by its contents amends the orders issued by the Tribunal on 24th May 2020.

b. That the said order was initiated by an application dated 4th June 2021which was never served upon the Applicant, the application was therefore heard in the absence of the Applicant and without his responses.

c. That the decision of the Tribunal will lead to attachment and sale of the Applicant’s property under the supervision of the OCS Muthaiga Police Station.

d. That the Applicant stands to loose his property unjustifiably.

e. That the ex-parte orders issued by the Tribunal are a risk toELC Appeal No. E087 of 2020 filed by the Applicant herein against the orders of the Tribunal issued on 28th May 2021.

f. That order 3b of the orders issued by the Tribunal on 28th May 2020 had already been performed by the Respondents on 29th April 2021 via a sale of the Respondent’s properties by Auckland Auctioneers.

3. The application is opposed. The Landlord/Respondent has filed the following grounds in opposition.

a. That the Tenant/Applicant is a convicted contemnor of this honourable Tribunal’s orders, he has no audience before the Tribunal.

b. That the application for police assistance is ordinarily an ex-parte application and the Tribunal did not make any error in hearing and determining the same as it rightly did.

c. That the Applicant is a vexatious litigant.

d. That the instant application is res judicata, litigation must come to an end.

e. That the application herein has no merit and the same should be dismissed with costs.

4. Parties have filed written submissions in this matter. The Applicant’s submissions may be summarized as follows;

a. That on 28th May 2020 the Tribunal issued orders against the Applicant in respect of the occupation of the Landlord’s premises.

b. That the Applicant has appealed against the decision of the Tribunal.

c. That on 4th June 2021, the Applicant amended the orders of 28th May 2020without the input of the Respondent/Tenant.

d. That the change (amendment) is fundamental and a material change that would not only affect the status of the appeal but also deny the Applicant the chance to defend himself and his establishment on the suit property.

e. That the Respondent stole a match against the Applicant in proceeding ex-parte.

f. That under order 3b of the orders issued on 28th May 2020, the OCS Runda Police Station was directed to ensure compliance with order (2) provided that the interim orders issued on 23rd August 2019 in favour of the Tenant are discharged.

g. That there is therefore ambiguity on what the police officers were to do in respect of the orders issued on 28th May 2020.

h. That the proceeding by the Respondent had the sole intention of denying the Applicant the opportunity to be heard and contrary to Article 50 of the Constitution of Kenya.

i. That the fact that a party to a cause has disobeyed an order of the court is not of itself bar to his being heard.

j. That the Applicant has moved to the Court of Appeal to challenge the contempt orders issued on 23rd April 2021 and as such he should not be denied audience.

5. The Landlord’s/Respondent’s submissions may be summarized as follows;

a. That the Tenant/Applicant has come to court with unclean hands having been convicted for contempt of court after disobeying the orders of this honourable Tribunal issued on 28th May 2020.

b. The ruling convicting the Applicant was delivered on 22nd April 2021by Lady Justice Komingoi.

c. That the Applicant has not purged the contempt and he cannot thus seek orders from the Tribunal.

d. That the Applicant is feigning ignorance of the hierarchy of courts. The Tribunal cannot stay the orders of 28th May 2021 (?) as the superior court has already approved of the same orders.

e. The Tribunal cannot stay the orders of the superior court but can only enforce them by granting the Landlord’s application dated 18th August 2021.

f. That an application for police assistance is ex-partein nature and the Respondent/Landlord did not need to serve the Applicant/Tenant.

g. That the orders of the Tribunal were never substantially challenged on appeal. Misc application No E057/2020 sought for leave to appeal out of time which was never granted.

h. That the contempt of court orders issued by Justice Komingoi were also never substantially challenged on appeal. The Applicant only sought stay and leave to appeal out of time which prayers were never granted.

i. The firm of Mwaniki Gachoka & Co advocates is not properly on record. Judgement has already been delivered in this case. Leave to come on record has not been sought neither has a consent been obtained from the firm of Muthoni Njomo and Co advocates.

6. The only issue for determination in this application is whether the Tenant/Applicant is entitled to the orders sought in his application and;

a. Whether the Tenant/Applicant has audience before this Court/Tribunal.

b. Whether the firm of Mwaniki Gachoka and Co Advocates are properly on record for the Tenant/Applicant.

7. Prayer 2 of the ex-parte notice of motion dated 4th June 2021 sought the following orders;

“That the honourable Tribunal be pleased to correct order 3(d) in the Tribunal’s orders given and issued herein on 28th May 2020 to read as follows;

3d – that the Officer Commanding Muthaiga Police Station be and is hereby directed to ensure compliance with order 3b above and to ensure that peace, law and order prevails.”

8. Order 3d of the orders issued on 28th May 2020 is in the following terms;

That the OCS Runda Police Station to ensure compliance with order 2 above and to ensure that peace, law and order prevails.

Order 2 referred to in the ruling is in the following terms;

2 – The interim orders issued on 23rd August 2019 in favour of the Tenant are discharged.

The interim order issued on 28th May 2020 3d is hereby amended to read as follows;

“The OCS Muthaiga Police Station is hereby directed to ensure compliance with order 3b and ensure that peace, law and order prevails.”

9. A reading of order No 2 of the orders issued on 28th May 2020 clearly shows that there is nothing for the police to enforce. It only discharges the orders of the court and that is a function of the court.

10. The prayer by the Landlord that the OCS Muthaiga Police Station assists with compliance of order No. 3b issued on 28th May 2020 does not, in my view, in any way affect the substance of the ruling and the orders of 28th May 2020. The Tribunal had already enlisted the assistance of the OCS Runda Police Station and certainly not to assist in the discharge of court orders issued on 23rd August 2019. That order can only have been made to assist the Tribunal in the enforcement of the orders it had issued on 28th May 2020. Any other interpretation would in my view be absurd. The location of the OCS is in my view immaterial for the purposes of this application.

11. The Applicant has indicated that he has appealed against the orders issued on 28th May 2020. That may be the case but that appeal does not operate as a stay of the orders of 28th May 2020 unless and until the superior court orders.

12. At prayer 3 of the application dated 2nd July 2021 the Applicant seeks;

“That the honourable Tribunal be pleased to set aside the orders issued on 24th June 2021 pending the hearing and determination of this application.”

This prayer does not have a life beyond the determination of this application. It could only have been granted pending the hearing of the application and now that the application has finally been heard and is due for determination by this ruling, this particular prayer is exhausted.”

13. At prayer 4 of the Applicant’s application the following prayer has been sought;

“That the Tribunal is pleased to stay execution of the orders issued by the honourable Tribunal on 28th May 2020 pending the hearing and determination of this application.”

14. Similarly, this order could only be granted pending the hearing and determination of the application. This prayer is also exhausted.

15. The only substantial prayer in this application is in my view the prayer granting leave to the firm of Mwaniki Gachoki and Co advocates to come on record for the Applicant and the one for costs. The other prayers are temporal in nature and only sought pending he hearing of the application.

16. The Landlord/Respondent has in his grounds of opposition stated that the firm of Mwaniki Gichoki and Co Advocates is not properly on record for the Applicant/Tenant. In this regard, I note the following;

a. That the judgement in this matter was delivered on 28th May 2020.

b. That on 2nd July 2020 the firm of Mwaniki Gachoka applied for leave to come on record for the Tenant/Applicant.

c. On5th July 2021,the court ordered the application dated 2nd July 2021 to be served for inter partes hearing before Hon Mugambi.

d. On 13th July 2021, the parties were ordered to file and serve submissions and mater fixed for mention on 25th August 2021.

e. On 25th August 2021, the matter was for reasons recorded, fixed for mention on 10th September 2021.

f.On 10th September, 2021, the matter was fixed for ruling on 8th October 2021.

17. I have given the above chronology of events to demonstrate that the firm of Mwaniki Gachoki and Co advocates have not been granted leave to appear for the Tenant/Applicant. They have neither obtained the consent of the counsel previously on record, Muthoni Njomo and Co Advocates to replace the said firm of advocates on record.

18. The notice of appointment by Mwaniki Gachoka & Co Advocates dated 1st July 2021 is therefore invalid, the same having been filed in contravention of order 9 Rule 9 of the Civil Procedure Rules which is in the following terms;

“When there is a change of advocate or when a party decides to act in person having personally engaged an advocate, after judgement has been passed such change or intention to act in person shall not be effected without an order of the court;

a. Upon an application with notice to all the parties or;

b. Upon a consent filed between the outgoing advocate and the proposed incoming advocates or party intending to act in person as the case may be.”

19. In the present case there is no order of the court either on application or upon consent of the parties concerned. The notice of appointment is invalid.

20. In ELC Misc Application No E004 of 2020 John Peter Kamau Ruhangi Vs John Ngugi Kabogo,the court ruled as follows;

a. That the Respondent is found guilty of disobeying the orders issued by the Business Premises Rent Tribunal on 28th May 2020.

b. That the Respondent is given sixty days from the date of this ruling to purge the contempt failure to which the Respondent is fined Kshs 200,000/- in default to serve four months imprisonment.

c. That the OCS Muthaiga Police Station is directed to arrest Mr John Ngugi Kabogo and/or present the said John Ngugi Kabogo for purposes of committal to civil jail.

d. That costs of this application be borne by the Respondent.

21. The Respondents have in their submissions stated that the Tenant/Applicant is a convicted contemnor. This is borne out by the findings of the judge in the above case and the orders that issued therefrom. The Respondents have further stated that the Tenant has not purged the contempt. The Applicant’s response to this is that he has already moved to the Court of Appeal to challenge the contempt orders issued by the Court on 22nd April 2021. I do not think this amounts to purging the contempt as contemplated in the orders of Judge above.

22. The Tenant has not demonstrated that he has in any way stayed the judge’s orders or successfully challenged the same. He remains a contemnor. The issue of contempt having been conclusively dealt with by the learned judge, and in the absence of evidence that the Applicant has purged the contempt, I do hold that the contemnor/Tenant/Applicant has no audience in this matter before the Tribunal. I agree with the statement that an Applicant who has not purged contempt is one that has no favour in the eyes of the court (see Stephen Mbugua Gituthi Vs National Land Commission & Another [2021] eKLR.

23. Following from the above observations and findings I do make the following orders;

a. That prayer 2 of the application dated 2nd July 2021 is allowed.

b. That prayer 3, 4 and 5 are declined.

c. That the Landlord shall have the costs of the application.

d.The application dated 18th August 2021 will be heard on 2nd December 2021.

e. Tenant counsel to be served.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this 5thday of November 2021 in the presence of Mr Ng’ang’a for the Landlord and in the absence of the Tenant and Counsel.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL