[2024] KEBPRT 318 (KLR)

Kanyoro v Mutemi & another (Tribunal Case E1019 of 2022) [2024] KEBPRT 318 (KLR) (5 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 318 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1019 of 2022

N Wahome, Member

February 5, 2024

Between

Isaac Naisankau Kanyoro

Landlord

and

Paul Mutemi

1st Tenant

Nyikaland International Technologies Group Limited

2nd Tenant

Ruling

1. This ruling is on the Tenant’s notice of preliminary objection dated 3. 3.2023 and notice of motion application dated 30. 8.2023. The same were informed by the filing of the reference herein dated 3. 11. 2022 and a notice of motion application dated 1. 11. 2022 by the Tenant.

2. On moving the court as above, preliminary orders were issued on the 4. 11. 202 to the effect that the Tenant was to immediately pay Kshs. 175,000/= to the landlord being part of the rent arrears owed to him. The application was also directed to be heard on the 15. 12. 2022.

3. When the matter came up for hearing on the 15. 12. 2022, the Tenant asked for time to file responses to the landlord’s application dated 1. 11. 2022 and this Tribunal granted 7 days for the filing of the responses. The matter was fixed for hearing on the 25. 1.2023 for hearing.

4. On 25. 1.2023, the Tenant though present by an Advocate had not filed any responses to the application by the landlord dated 1. 11. 2022 and my brother Hon. Andrew Muma proceeded to allow the application in its entirety and also the reference dated 3. 11. 2022.

5. Aggrieved by the said orders, the Tenant on the same date of 25. 1.2023 filed a notice of motion of even date seeking for stay of execution and for leave to file a defence to the landlord’s reference and replying affidavit to the application thereof. These orders were granted by my sister Hon. Patricia May on the 30. 1.2023 and the matter was fixed for mention on the 8. 3.2023.

6. It is not clear as to what happened on the 8. 3.2023 but on the 16. 06. 2023, Hon. Andrew Muma did fix the Tenant’s notice of motion dated 25. 1.2023 for hearing on the 7. 8.2023. On this date, the Tenant and counsel were absent and Hon. Andrew Muma proceeded to again allow the landlord’s application dated 1. 11. 2022 and dismiss the Tenant’s application dated 25. 1.2023.

7. The terms of the order was that it was confirmed that the Tenant owed the landlord Kshs. 1,011,741/= in arrears in rent and was condemned to pay costs for its dismissed application dated 25. 1.2023 at Kshs. 20,000/=.

8. On the issuance of the above orders, the Tenant filed the notice of motion application dated 30. 8.2023. In essence, the said application sought for the following orders;a.Spentb.That there be a stay of execution of the warrants of attachment and sale in execution of the decree herein and in particular the Upstate Kenya Auctioneers be restrained from selling the attached goods pending the hearing and determination of the application inter partes;c.That this Honourable Tribunal be pleased to reinstate the Tenant’s application and the same be listed for hearing.

9. The application was granted in terms of prayer (2) and the matter fixed for hearing on the 3. 10. 2023. Before then and by a notice of preliminary objection dated 3. 3.2023, the Tenant had raised the following issues;-a.That this court lacks jurisdiction to hear and determine the claim herein as the subject matter tenancy is not a controlled tenancy.b.That no tenancy notice was issued.c.That the claim as presently formulated is incompetent as it is presented as a civil claim for which this Tribunal lacks jurisdiction and not as a reference and abuse of court process.

10. Directions were given on the 27. 11. 2023 and 15. 12. 2023 to the effect that the application dated 30. 8.2023 and the notice of preliminary objection would be canvassed by way of written submissions.

11. The landlord filed submissions dated 22. 11. 2023 in opposition to the application dated 30. 8.2023 and further submissions dated 7. 12. 2023 in opposition to the Tenant’s notice of preliminary objection dated 3. 3.2023.

12. On its part, the Tenant filed the submissions dated 24. 11. 2023 purportedly in support of its application dated 25. 1.2023 and further submissions dated 30. 11. 2023 in support of the notice of preliminary objection.

The Case for the Tenant 13. According to the Tenant:-i.The distress for rent was premature as there was no determination whether there was any rent in arrears.ii.In allowing the application dated 1. 11. 2022, the entire suit was compromised at the interlocutory stage.iii.Advocates for the Tenants were unable to login on the 7. 8.2023 and therefore the Tenant was condemned unheard.iv.The application was filed timely and that the notice of preliminary objection raised the very important issue of jurisdiction.v.The Tribunal has the inherent jurisdiction to allow the application dated 30. 8.2023 and the preliminary objection thereof.vi.In case the orders sought are not granted, he would suffer irreparable loss.vii.The authorities referred to were;a.Bult vs Rent Restriction Tribunal [1982] KLR 417,b.Charles Irungu vs Elizabeth Kalunda Wakana [2021] EKLR,c.Mukisa Biscuits Manufacturing Ltd vs West End Distributors [1969] EA 696d.Republic vs Business Premises Rent Tribunal & Another, Ex-parte Albert Kigera Karome [2015] eKLR,e.Birds Paradise Tours & Travel Ltd vs Hotel Secretaries [1988] eKLR.

14. The Tenant therefore sought that the application dated 30. 8.2023 be allowed and that the notice of preliminary objection be upheld.

The Case for the Landlord 15. The landlord’s case is that;-a.He entered into an oral tenancy agreement with the Tenant in October 2020 at the monthly rent of Kshs. 66,000/=.b.By October, 2022, the rent in arrears was Kshs. 351,741/=.c.He had issued the Tenant with an invoice dated 3. 10. 2022 but the same was never settled.d.The Tenant had issued him with a cheque for Kshs. 207,741/= in partial fulfillment of his rental objections but it had never authorized for the same to be deposited in payment as agreed.e.The Tenant had made promises through the entire tenancy to clear the rent in arrears but all was in vain. Evidence was annexed to that effect.f.All the Tenant’s items were lying at the demised premises and could not lease out the same and was being denied a source of income.g.The Tenant’s applications were merely meant to buy them time.h.Reliance was also put on the following case laws;-i.John Kibet Rotich vs Elijah Kibet Siele [2021] EKLR(ii)Martin Masya Musango vs Materu Watimuta Njuani [2021] EKLR(iii)Dalcon Kenya Ltd vs Francis C. Maritim & Anot. [2021] EKLR(iv)Joseph Nthumbi Kamuishi vs Asha Akumu Juma Embu HCCA No. 7 of 2016. (v)Nasenye Mohamed Dahir vs Recho Nabucha Wafula & Anot. [2022] EKLR(vi)Mathew Gitonga Kihara vs Peter Geche Karanja [2021] EKLR; andviii.Promise Management Ltd vs Chairman BPRT & Anot. [2015] EKLR

16. The landlord therefore sought for the dismissal of the application dated 30. 8.2023 and the preliminary objection dated 3. 3.2023 with costs.

17. Having taken due consideration of the respective cases for parties herein, it is my considered opinion that the issues for determination are the following;-A.Whether this Tribunal has jurisdiction to preside over the matters herein.B.Whether the Tenant’s application dated 30. 8.2023 is merited.C.Who should bear the costs of this proceedings.

Issue A: 18. On this issue, the Tenant has alleged that the relationship between the parties does not amount to a controlled tenancy. The main ground for this was that;-i.it was not clear whether the relationship between the parties involves more than 5 persons being accommodated and fed at the premises.ii.That there was no evidence that a tenancy notice was issued under Section 6 of Cap 301; andiii.The landlord had filed a civil claim before the Tribunal instead of a reference.

19. The main ground for declaration of a controlled tenancy is as founded under Section 2(1)(a) which provides that:-“A controlled tenancy means a tenancy of a shop, hotel or catering establishment-a.Which has not been reduced into writing.”The plain reading of that section confirms the relationship between the parties as a controlled tenancy. Their agreement was oral.

20. The correspondences between the parties clearly showed that more than 5 persons were being accommodated by the landlord. This is exemplified in particular by pages 20 and 21 of the bundle to the landlord’s application dated 1. 11. 2022. It is also clear from correspondences between the parties that the premises had been hired for storage of the Tenant’s materials and also to accommodate its workers at lodgings constructed thereon.

21. I do not really understand what notice the landlord required to give to recover rent in arrears. The parties were in continued communication running into months on the issue of rent in arrears. A casual look at the same shows that the Tenant was very slow in keeping its promises. At one instance, it issued a cheque for Kshs. 207,741/= but never authorized for its deposit.

22. Section 12(1)(e) of Cap 301 provides that some of the powers of this Tribunal is to:-“make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for payment of rent arrears...”

23. Finally, is that the landlord did not file a civil action before this Tribunal. What the landlord filed was a reference dated 3. 11. 2022 as a complaint under Section 12(4) of the Act. By then, he claimed Kshs. 351,741/= as rent in arrears from the Tenant.

24. The upshot of this, is that, the preliminary objection dated 3. 3.2023 lacks in any merit and the same is dismissed.

Issue B: Whether the Tenant’s application is merited 25. The application dated 30. 8.2023 is grounded on the reason that the counsel for the Tenant had problems with joining the court proceedings virtually. That when he did, the application dated 25. 1.2023 had already been dispensed with. I take notice that the same reason was offered and this Tribunal allowed the Tenant to defend the reference dated 3. 11. 2022 and the application dated 1. 11. 2022. To date, no defence nor replying affidavit has been filed against both respectively.

26. I also note that, the Tenant only came to court to seek for stay of the orders issued on the 7. 8.2023 and reinstatement of the application dated 25. 1.2023 on the 30. 8.2023 after the landlord had paid the extra court fees of Kshs. 101,174/= which had been paid on the 11. 8.2023 and after the proclamation and attachment of the Tenant’s goods on the 25. 8.2023 by Upstate Kenya Auctioneers in execution of an order of this court to the same effect.

27. The Tenant has not denied that the rent payable for the demised premises was Kshs. 66,000/=. He has also not presented any figures in rent arrears contrary to the claim by the landlord in his reference dated 3. 11. 2022 at Kshs. 351,741/= or as granted by this court on the 7. 8.2023 at Kshs. 1,011,741/=. In my view, the rent in arrears that the Tenant had acknowledged by writing the cheque for Kshs. 207,741/= is sufficient to authorize levy of distress without resorting to this court.

28. The Tenant in all its filing has not alluded or submitted any evidence of payment of the rent or part thereof as claimed by the landlord. The Tenant has also not made any proposal on settlement of the arrears in rent. This tribunal must be equitable in all its dealings. The Tenant must meet his cardinal obligations as a tenant to receive the requisite attention by this Tribunal. Failure to effectively take up this responsibility is an affront to the duties of a tenant.

29. That position has been discoursed on by several courts and the determination is that a Tenant not vigilant in that particular area of his obligations is in a very weakened position. In this, I refer to the cases of;-(i)Regan Kampur vs Lad Grosvernor [No.2} [1977] KLR 129(ii)East African Power & Lighting Co. Ltd vs Attorney General [1978] eKLR(iii)Mcabaha Victory Secondary School vs Gaetano Grasso [2014] eKLR.

30. Am also alive to the provisions of Section 98 of the Civil Procedure Act. The powers of this court to exercise its discretion to set aside and reinstate a dismissed application are not in dispute. The court is empowered to make such orders as may be necessary for the ends of justice.

31. In Gideon Musa Onchati vs Kenya Oil Co. Ltd & Another [2017] KLR 650. It clearly laid down the principles for grant of the orders as sought herein. The Applicant must show sufficient cause for the dismissal. That the party had not acted in a negligent manner or there was want of bonafides on its part. That the party was not acting diligently or remaining inactive.

32. The court concluded that;-“However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whichever court exercises discretion, it has to be exercised judiciously.”

33. In this case, the application sought to be reinstated is one for leave to defend the reference and application herein. Those orders were granted on the 30. 1.2023 but to date no response has ever been filed to the application dated 1. 11. 2022 nor defence filed to the reference dated 3. 11. 2023.

34. Without such response nor defence, this court cannot tell that the Applicant has any case deserving of the opportunity sought for in the application dated 30. 8.2023. I therefore in my view find that the said application has no merit and same is dismissed.

Issue C: Who should bear the costs of this suit 35. Conventional wisdom dictates that in compliance with Section 27 of the Civil Procedure Act, I award costs to the landlord.

36. In the final analysis, I make the following orders:-a.That the notice of preliminary objection dated 3. 3.2023 is dismissed and this court determines that it has the requisite jurisdiction to preside over the matters herein.b.That the Tenant’s application dated 30. 8.2023 is dismissed.c.That for avoidance of doubt, the landlord is allowed absolute access to the orders issued on the 7. 8.2023. d.That the Tenant shall pay costs to the landlord assessed at Kshs. 20,000/=.

Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF FEBRUARY 2024. HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Mr. Kamau holding brief for M/S Kafafa for the landlordThe firm of Mutai Oduor is present for the Tenant/ApplicantMr. Kamau: The reference is fully compromised by the ruling that has been delivered. The same may be marked as settled.Court: the reference herein and dated 3. 11. 2022 is fully compromised by the ruling herein and same is allowed in the same terms. This is to say that the orders issued on the reference and dated 25. 1.2023 are restored. A certified copy to be supplied to the parties on payment of the requisite court fees.HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNAL