[2022] KEBPRT 807 (KLR)

Kanyi v Padia (Tribunal Case E065 of 2022) [2022] KEBPRT 807 (KLR) (Civ) (3 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 807 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E065 of 2022

Gakuhi Chege, Vice Chair

October 3, 2022

Between

Phillis Wanjiku Kanyi

Applicant

and

Rajendra Nanoo Padia

Respondent

Ruling

1. The proceedings herein commenced by way of a reference under section 12(4) of Cap. 301, Laws of Kenya which is dated May 23, 2022 by which the tenant sought for restraining orders against the landlord from interfering, closing, intimidating, evicting, harassing, disposing her tools of trade in any manner whatsoever pending hearing and determination of the application. She also sought to deposit rent in the landlord’s or the court’s account.

2. The tenant simultaneously filed a motion of even date seeking the same orders supported by her own affidavit wherein she deposes that she rented a room at plot no. Nyeri Municipality Block 2/57 at a monthly rent of Kshs.4,800/- but on January 14, 2022, she was served with a letter dated January 11, 2022 demanding that she vacates from the premises. The demand notice is marked ‘PMK4’.

3. Interim orders were given on May 26, 2022 restraining the landlord from interfering with the tenant’s tenancy in the manner complained of and the application was directed to be heard inter-partes on May 26, 2022.

4. The Landlord filed a replying affidavit sworn on July 5, 2022 in opposition to the application contending that the application is misconceived, frivolous and vexatious and an abuse of court process as the same is allegedly supported by the affidavit of John Gichuki Macharia but the true and/or correct deponent is one Philis Wanjiru Kanyi. I hasten to note that the said deposition is not correct as the affidavit on record is sworn by the applicant/tenant and not by John Gichuki Macharia.

5. On May 23, 2022, the said application was dismissed for want of prosecution and attendance and the tenant was ordered to pay Kshs.20,000/- as costs to the landlord. The said order is yet to be obeyed and the tenant is accused of coming to court with unclean hands and ought to be denied audience until she complies.

6. The tenant filed a further affidavit sworn on June 20, 2022 deposing that the Respondent’s suit in Nyeri ELC case No. E007 of 2022 is a non-starter, incurably bad in law as it was filed without exhausting this court’s jurisdiction. As a result, the tenant had filed a notice of preliminary objection in the said suit marked ‘PWK1’ together with defence.

7. The tenant contends that the landlord held her rent deposit and the agent only refunded the May rent on May 31, 2022 after service of the tenant’s application.

8. On June 24, 2022, the tenant filed a second application seeking for review, variation and/or setting aside of the orders of June 23, 2022 dismissing the application dated May 23, 2022. She also seeks for reinstatement of the said application. The application is supported by the tenant’s affidavit sworn on June 24, 2022 where it is deposed that her advocate experienced technical difficulties in addressing the court.

9. According to the tenant, her application dated May 23, 2022 raises substantive and weighty issues touching on tenant/landlord relationship which ought to be determined by the Tribunal.

10. It is deposed that the Respondent will not suffer any prejudice if the said application is reinstated for hearing and determination.

11. The application is opposed through the replying affidavit of the Respondent sworn on June 8, 2022 in which he deposes that he had already filed ELC case No. E007 of 2022 for eviction of the Applicant in which the latter had entered appearance in terms of annexure ‘RNP1’.

12. The Respondent contends that he had issued the tenant with a three (3) months notice of non-renewal of the lease on January 11, 2022 and that the sum of Kshs.48,000/- paid by him as May 2022 rent had been refunded as per annexure “RNP2” & ‘RNP3’ respectively.

13. The lease having been terminated lawfully, it is the Respondent’s case that this Tribunal cannot force its existence and that the orders of May 26, 2022 were obtained through concealment or non-disclosure of material facts and the same ought to be set aside.

14. I am now required to determine the following issues:-a.Whether the tenant is entitled to the reliefs sought in the application dated June 24, 2022. b.Who is liable to pay costs of the suit?

15. The principles upon which courts consider applications to set aside ex-parte orders or judgments were settled in the locus classicus case of Shah – vs- Mbogo & Another (1967) EA116 at page 123 as follows:“I have carefully considered in relation to the present application the principles governing the exercise of the courts discretion to set aside a judgment obtained ex-parte. This discretion is intended so as 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 course of justice”.

16. I have noted that the applicant’s motion is predicated upon alleged “technical difficulties “experienced by his advocate in addressing the court. The nature of the alleged technical difficulties is not explained neither has the advocate sworn an affidavit in support of the application to set aside. The applicant has not explained why she did not on her part attend court on June 23, 2022 when the impugned orders were made. As such the reason given for the application is not explained and is not believable to warrant this Tribunal to exercise discretion to set aside judgment in her favour.

17. Secondly, it is common ground that the issues raised in this matter in regard to existence of landlord/tenant relationship between the parties is subject matter of Nyeri ELCC No. E007 of 2022 and entertaining the instant proceedings may result into conflicting judgments or orders in the two matters. As this Tribunal is subordinate to the Environment and Land Courts in the hierarchical order of courts in Kenya and must show deference in adjudicating matters under active litigation in such higher court. I shall therefore not exercise my discretion in favour of the applicant who is at liberty to raise matters herein in the superior court.

18. As regards costs, the same are in the Tribunal’s discretion under section 12)1) (k) of Cap. 301, Laws of Kenya but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the Respondent costs of the suit.

19. In conclusion therefore, the final orders which commend to me are:-i.The Applicant’s application dated June 24, 2022 is hereby dismissed with costs.ii.The orders of May 23, 2022 dismissing the application dated May 23, 2022 and discharging the orders of May 26, 2022 are hereby reaffirmed.iii.The Respondent is awarded costs of Kshs. 30,000/- against the applicant all inclusive.

It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 3RD DAY OF OCTOBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:-Maina for Tenant/ApplicantNo appearance for the Landlord/Respondent