[2024] KECPT 1537 (KLR)
The Tribunal found that the Tenant's Application for review was unopposed, as the Respondents had not filed any responses. The Tribunal accepted the Tenant's explanation that his Counsel was indisposed and undergoing a medical procedure at the time of the dismissal, and that this was not contested by the...
Source-derived case information.
- Citation
- [2024] KECPT 1537 (KLR)
- Parties
- Applicant: John Waicua Kungu; Respondent: Geoffrey Gichuhi; Respondent: Takim General Agencies Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 381 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Review and Set Aside Dismissal Order
- Outcome
- Application allowed; dismissal order set aside; Reference reinstated.
- Judges
- CN Mugambi
- Legal Topics
- Tenancy Termination, Review of Orders, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Waicua Kungu
Applicant
Geoffrey Gichuhi
Respondent
Takim General Agencies Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Review and Set Aside Dismissal Order
Legal Issues
- 1 Whether the Tribunal should review, set aside or vacate the dismissal order issued on 19.8.2024.
- 2 Whether the Tenant is entitled to a stay of enforcement of the notice to terminate tenancy.
- 3 Whether the Tenant is entitled to reinstatement of previous Tribunal orders and injunctive relief against eviction.
Ratio Decidendi
The Tribunal found that the Tenant's Application for review was unopposed, as the Respondents had not filed any responses. The Tribunal accepted the Tenant's explanation that his Counsel was indisposed and undergoing a medical procedure at the time of the dismissal, and that this was not contested by the Respondents. The Tribunal was satisfied that sufficient cause had been shown to warrant review and setting aside of the dismissal order. The Tribunal therefore allowed the Application, reinstated the Reference, and directed the parties to fix the matter for directions.
Court Disposition
Application allowed; dismissal order set aside; Reference reinstated.
Orders
- The Tenant's Application dated 23.8.2024 is allowed.
- The dismissal order issued on 19.8.2024 is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
Kungu v Gichuhi & another (Tribunal Case 381 of 2020) [2024] KECPT 1537 (KLR) (11 October 2024) (Ruling)
Neutral citation: [2024] KECPT 1537 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 381 of 2020
CN Mugambi, Chair
October 11, 2024
Between
John Waicua Kungu
Tenant
and
Geoffrey Gichuhi
1st Respondent
Takim General Agencies Limited
2nd Respondent
Ruling
1. The Tenant’s notice of motion dated 23. 8.2024 seeks to review, set aside and/or vacate the orders issued on 19. 8.2024. The Tenant also seeks an order staying the enforcement of the Landlord’s notice to terminate tenancy dated 28. 6.2021, an order reinstating all the inherent and substantial orders issued by the Tribunal and an order of injunction restraining the Landlord and the 2nd Respondent from in any way interfering with the Tenant’s quiet use and occupation of the suit premises.
2. The Tenant has sworn an affidavit in support of his Application wherein he has deponed that the dismissal of his Reference on 19. 8.2024 has exposed him to imminent danger of eviction by the Respondents.
3. The Tenant has also deponed that Counsel for the Landlord while applying for the dismissal of the Reference did not inform the Tribunal that the Tenant had already filed his compliance documents and it is indeed the Landlord who had not complied with court orders as far as compliance was concerned.
4. The Tenant has further deponed that at the time the matter was dismissed, his Advocate was indisposed and therefore failed to log in and indeed on 20. 8.2024, Counsel had a minor injury conducted upon him at Nazareth Hospital and was still recuperating at the time the Affidavit was sworn and filed.
5. The Tenant also depones that the Respondents have embarked on eviction processes against the Tenant despite the existence of court orders issued on 16. 4.2020 and confirmed on 7. 05. 2020.
6. On 18. 9.2024, the court made the following orders;-“The Landlord is allowed to file and serve the Replying affidavit within three days with corresponding leave to the Tenants to file a further affidavit within seven days together with submissions. The Landlord will have seven days upon service to file their submissions.”
7. At the time of writing this Ruling, the Landlord has not opposed the Tenant’s Application for review. The Respondents have not filed any responses to the Tenant’s Application which therefore remains unopposed.
8. I have read the reasons given by the Tenant for the absence of his Counsel on 19. 8.2024. It has been deponed that the Counsel for the Tenant was indisposed on 19. 8.2024 and was actually operated on, on 20. 8.2024. that deposition has not been contested and I have no reasons not to believe the same.
9. In the circumstances, I allow the Application by the Tenant dated 23. 8.2024.
10. The parties shall forthwith fix the Reference for directions.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF OCTOBER,2024HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Kemboi holding brief for Ms. Waceke for the landlord and in the presence of Mr. Karanja for the Tenant.Court: Mention on 29. 10. 2024 for further directions.