[2024] KEBPRT 178 (KLR)

Kironji v William & Sons Investment Co Ltd & another (Tribunal Case E118 of 2023) [2024] KEBPRT 178 (KLR) (21 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 178 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E118 of 2023

P May, Member

February 21, 2024

Between

Margaret Wangari Kironji

Tenant

and

William & Sons Investment Co Ltd

1st Respondent

Trade Wide Auctioneers

2nd Respondent

Ruling

1. The application before me is the tenant’s notice of motion dated 5th September, 2023. The application sought for orders of review against the ruling delivered on 9th August, 2023. The tenant further urged the Tribunal to make an order for joint reconciliation of the accounts between the tenant and the landlord.

2. The application is premised on the grounds set out on the face of the application and the further grounds enumerated in the supporting affidavit sworn by the tenant. The tenant stated that contrary to the finding made by the Tribunal, she had offered an alternative tabulation on the rent due and the same was sufficient to convince the Tribunal to make a different conclusion. She also claimed that some of the payments she made were not considered hence the finding on the rent arrears due was erroneous.

3. The application has been opposed through the Replying affidavit sworn by a representative of the 1st respondent who deposed that the application is bereft of merit and that the tenant is attempting to prefer an appeal in the tribunal instead of approaching a superior court. The landlord has maintained that the finding by the Tribunal was sound and correct based on the evidence that was submitted before it.

4. The tenant filed a further affidavit in response to the contents of the replying affidavit and reiterated their previous averments. The parties elected to canvass the application by way of written submissions. There has been compliance by both parties and would proceed as follows:

5. Courts and Tribunals have the discretion to allow review on three grounds; where there is discovery of new and important matter of evidence, where there is an apparent error on the face of the record and where there is sufficient reason to do so. The application for review must be made without undue delay. The applicant herein has pleaded that there was an error on the face of the record which warrants this court to exercise its discretion and review the orders issued on 9th August, 2023.

6. Courts of superior jurisdiction have discussed the several grounds for allowing review. In Muyodi v Industrial and Commercial Development Corporation & another [2006] 1 EA 243, the Court of Appeal described an error apparent on the face of the record as follows:“…In Nyamogo & Nyamogo v Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.”

7. The supreme court of Uganda in; Edison Kanyabwera v Pastori Tumwebaze (2005) UGSC 1, provided for what constitutes an error apparent on the face of the record, it stated as follows; “It is stated that in order that an error maybe a ground for review, it must be one apparent on the face of the record, ie an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit such an error to remain on the record. The error maybe one of fact, but it is not limited to matters of fact, and includes also error of law.”

8. The court of appeal in National Bank of Kenya Limited v Ndungu Njau (1997) eKLR stated as follows; “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.”

9. In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018 John M. Mativo Judge culled out the following principles from a number of authorities: -i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.

10. From the above quoted decisions, it is clear that the courts agree that the error or omission must be self-evident without there being a need for additional arguments. Let us now turn to the grounds that have been preferred by the tenant. The tenant has insisted that the Tribunal failed to take into consideration its tabulation of the rent arrears due. The said tabulation has been opposed by the landlord who believes that the manner of arriving at the figures given by the tenant disregards the agreement between the parties herein.

11. I have perused through the ruling that was delivered on 9th August, 2023 and the same had analyzed the evidence that had been tendered by the protagonists including the rent arrears owing. Each of the parties have in the present case submitted their separate statements of accounts. In my view this does not amount to an error on the face of the record as the Tribunal had considered the tenant’s application and the accompanying affidavit before making which advanced a similar argument as it the case now.

12. The upshot of the above is that, the application is without merit and the same is dismissed with no orders as to costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF FEBRUARY, 2024. HON. PATRICIA MAYMEMBER02. 2024Deli fvered in the presence of; Ms. Njagi holding brief for Mutegior the TenantNo appearance for the landlord