[2024] KEBPRT 179 (KLR)

Kimathi v Mweti (Tribunal Case E125 of 2023) [2024] KEBPRT 179 (KLR) (18 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 179 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E125 of 2023

N Wahome, Member

January 18, 2024

Between

Nancy Muringo Kimathi

Tenant

and

Daniel Mweti

LandLady

Ruling

1. The Tenant/Applicant filed the present proceedings by way of a reference dated 11. 10. 2023 which was said to have been founded on Section 12(4) of the Landlord and Tenant (shops, Hotels and Catering Establishments) Act Cap 301 of the Laws of Kenya hereinafter referred to as the Act.

2. The grounds on the face of the reference were that:-“The landlord be ordered to desist from harassing the Tenant, desist from demanding undue rent, OCS Nanyuki be ordered to ensure compliance. Any other relief and costs.”

3. The reference was supported by a notice of motion of the same date brought under certificate of urgency. It replicated the same prayers as in the motion. The said motion was suo motto allowed in terms of prayers 1, 2 and 3 in the interim on the 12. 10. 2023.

4. The application came up for hearing on the 31. 10. 2023 in the absence of the Respondent and on the court confirming service to the later, the Tenant’s application was allowed together with the reference. The Respondent was condemned to pay costs of Kshs. 20,000/= to be offset from the rent payable by the Applicant to the Respondent.

5. It is these orders that triggered the Respondent’s application dated 2. 11. 2023. The same sought for the following reliefs;-a.That the court be pleased to stay execution of the order of the court pursuant to the ruling delivered on 31. 10. 2022 in favour of the Tenant/Applicant pending the hearing and determination of this application inter partes.b.That the court be pleased to set aside the ex-parte ruling entered on the 31. 10. 2023 in favour of the Applicant/Tenant and grant the Respondent/Landlord leave to defend the suit so that the same may be heard and determined on merit.c.That the costs of this application be provided for.

6. The application dated 2. 11. 2023 was allowed in terms of prayers 1 and 2 on the 3. 11. 2023 in the absence of the parties. The main grievance by the Landlord/Applicant is that his then Advocate suffered technology failure and was unable to address the court and thus the adverse orders made on the 31. 10. 2023.

7. The Landlord further complained that the orders of this court were made without any regard to the replying affidavit sworn on the 27. 10. 2023 and that the said orders were erratic. I wished that the counsel for the Landlord would have quantified such heavy and condescending statement.

8. When the orders of 31. 10. 2023 were made, the court had appreciated that from the materials on record, the Tenant’s application dated 11. 10. 2023 demonstrated merit and which was allowed in the same terms with the reference of the even date which had similar reliefs to those in the application.

9. That may, I have perused the pleadings herein in totality including the two applications dated 11. 10. 2023 and 2. 11. 2023 respectively and the supporting affidavits thereof and appreciate the very input of both the cases for both the Tenant and the Landlord.

10. Order 10 Rule 11 provides that;-“Where Judgment has been entered under this order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”

11. Section 12(1)(i) of the Act provides that:-“This tribunal has powers to vary or rescind any order made by the Tribunal under the provisions of this Act.”In the case of; Philip Kiptoo Chemwoto & Mumias Sugar Company vs Augustine Kubede [1982-1988] KAR, the court of Appeal held that;-“the court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and post such judgment….”

12. In the case of; Mohamed & Another vs Shoka [1990] KLR 463, the court considered that the following four requirements were necessary before setting aside a judgment;i.Whether there is a regular judgment,ii.Whether there is a defence on merit,iii.Whether there is a reasonable explanation for any delay; andiv.Whether there should be any prejudice.

13. I note that the orders made herein were made consciously with the court appreciating the landlord’s replying affidavit sworn on 27. 10. 2023. and with such consideration, the court found for the tenant. Though there was no defence filed in response to the reference, a replying affidavit is on record and I decline to go to its merits at this point. I however note that the Tenant has in no way denied the landlord’s assertion on oath that at one point on the 31. 10. 2023, his Advocate was digitally present in court before he suffered technical hitches.

14. Therefore, in the totality of this matter, I would get guidance from the case of; David Kiptanui Yego & 13 Others vs Benjamin Rono & 3 Others – HCCC No. 18 of 2020 at Eldoret, where the court held that;“the courts are guided by the provisions of Article 159(2)(d) of the Constitution and Section 1A and 113 of the Civil Procedure Act in administering justice. The focus being on substantive justice, rather than procedural technicalities, and the just, efficient and expeditious disposal of cases.”

15. Therefore, in the final analysis and appreciating that the landlord’s application dated 2. 11. 2023 was filed barely 2 days after the orders of 31. 10. 2023, I proceed to dispose the landlord’s application aforesaid in the following terms:-a.That the orders of this Honourable court made on the 31. 10. 2023 are vacated and/or set aside and the landlord is granted leave to respond to the application and Reference both dated 11. 10. 2023 within fourteen (14) days of the date hereof.b.The Tenant has fourteen (14) days on service by the landlord to file and serve any supplementary affidavits necessary and documents.c.That both parties will comply with order 11 of the Civil Procedure Rules within thirty (30) days of the date hereof.d.The interim orders granted to the Tenant on the 12. 10. 2023 are restored pending further directions of this court.e.The landlord shall pay the Tenant throw away costs of Kshs. 5,000/= within seven (7) days of the date hereof.f.Mention on the 22. 2.2024 for further directions.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 18TH DAY OF JANUARY 2024. HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of M/S Santa Munga for the Landlord and in the absence of the Tenant.The landlord to serve the Tenant with a mention notice.HON. NDEGWA WAHOME, MBSMEMBERBUSINESS PREMISES RENT TRIBUNAL