[2021] KEBPRT 368 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 112 OF 2019 (NYERI)

LINET WAMUYU KARIUKI...............................................TENANT

VERSUS

LAWRENCE MUNYARI KARIUKI.............................LANDLORD

RULING

This ruling relates to the Tenant’s application dated 29th March 2021. By the said application, the Tenant seeks the following prayers;

1. Spent

2. Spent

3. That this honourable Tribunal be pleased to vary or set aside the orders given on 26th February 2021 and issued on 3rd March 2021.

4. That this Honourable Tribunal be pleased to fix for hearing the Landlord’s motion dated 22nd December 2020 and further grant the Tenant leave to file a replying affidavit to the said Landlord’s motion dated 22nd December 2020.

5. Costs.

The motion is based on the grounds set out in the face of the said motion and which I summarize as follows;

1. That counsel for the Tenant M/S Muhoho Gichuru and Co advocates recorded consent orders on 26th February 2021 without the express instructions of the Tenant.

2. That the said Advocates did not explain to the Tenant/Applicant the full import and implication of the consent orders before the same were recorded in the Tribunal.

3. That the consent orders compromised the Tenant’s motion dated 22nd December 2020which was prejudicial to the Tenant.

4. That the consent was prejudicial to the Tenant’s investment in the suit premises and did not take into account the statutory payments made by the Tenant on behalf of the Landlord.

5. That comprehensive accounts need to be taken between the parties.

6. That the interests of justice demands that the orders be set aside.

The application is also supported by the annexed affidavit of the Tenant, Linet Wamuyu Kariuki whose contents I would summarize as follows;

1. That the firm of Muhoho Gichimu & Co advocates have been acting for the Tenant in this matter.

2. That on 27th January 2021 M/S Muhoho Gichimu and Co Advocates were granted leave to file a replying affidavit to the Landlord’s application dated 22nd December 2020.

3. That the said advocates did not explain to the Tenant the meaning of the phrase “to file a replying affidavit.”

4. That on 26th February 2021, when the matter came up for hearing, the counsel for the Tenant had not filed a replying affidavit but only advised the Tenant that she had a bad case and needed to negotiate the matter with the Landlord’s advocates, the Tenant did not understand what that meant.

5. That the counsel for the Tenant did not bring to the attention of the Tribunal the Tenant’s investments in the business premises and other interests as particularized under paragraph 9 of the Tenant’s supporting affidavit. The said interests total Kshs 381,700/-.

6. That in view of the said investments, it is proper that an account between the parties be undertaken.

The application is opposed. The Landlord has filed a replying affidavit sworn on 6th May 2021. The contents of the said affidavit may be summarized as follows;

1. That on 26th February 2021, the Tenant and her advocates attended the Tribunal and recorded a consent order in this matter, counsel for the Landlord was also present.

2. That the Tenant has been paying rent in piece meal.

3. That as per the consent recorded, the Tenant admitted to owing the Tenant Kshs 795,000/- and that the Tenant was to pay to the Landlord Kshs 400,000/- within 21 days failing which she would vacate or be evicted from the premises.

4. That on 23rd March 2021 both the Landlord and the Tenant attended court. The Tenant indicated that she was ready to pay Kshs 50,000/- and indeed did pay Kshs 25,000/-.

5. That the Tenant never raised any objections on the day the consent was recorded in court.

6. That the consent order is binding on all parties to it unless obtained through fraud.

7. That the application dated 29th March 2021is an attempt to avoid payment of rent by the Tenant and a further waste of the Tribunal’s time.

8. That the Tenant is yet to pay theKshs 400,000/-within the time stipulated in the consent order;

When this matter came up for directions on 20th May 2021,the Tenant requested for time to file her submissions in support of her application under consideration. She was granted seven days to file her submissions. By the time of writing this ruling, the Tenant had not filed her submissions. The Landlord, though, has filed his submissions. I proceed to summarize the contents thereof as follows;

1. That the parties herein entered into a lease agreement on 30th March 2019.

2. That the Tenant has already admitted owing the Landlord Kshs 795,000/- which has continued to escalate with arrears now at Kshs 870,000/-.

3. That a consent order can only be set aside on the following grounds;

a. If the consent was obtained fraudulently.

b. If the consent was based on insufficient material facts.

c. If there was collusion between the parties.

d. If the consent is based on misapprehension or ignorance of material facts.

e. If the consent is against the policy of court OR

f. For any other sufficient reason.

4. That none of the above grounds are available to the Tenant.

5. That the Tenant is incapable of honouring her obligations.

Having set out the cases for the respective parties, the issues that arise for determination in my humble view are the following;

1. Whether the consent orders recorded in court on 26th February 2021 ought to be set aside.

2. Whether the Landlord’s motion dated 22nd December 2020 ought to be fixed for hearing and the Tenant granted leave to oppose the same.

On Issue No. 1

On 6th January 2021, the Tribunal considered the Landlord’s motion dated 22nd December 2020, certified the same as urgent and ordered the same to be served for hearing on 27th January 2021.

On 27th January 2021, Mr Ndurumo advocate appeared for the landlord while Mr Muhoho Gichimu advocate appeared for the Tenant. By consents of both counsel, the landlord’s application dated 3rd July 2020 and 14th February 2020 were withdrawn and the one dated 22nd December 2020 was fixed for hearing on 26th February 2021.

On 26th February 2021, Mr Ndurumo advocate appeared for the Landlord and Mr Muhoho advocate appeared for the Tenant.

The counsel recorded the following consent;

By consent;

1. The admitted rent up to and including February 2021 is Kshs 795,000/-.

2. The disputed rent is in the sum of Kshs 60,153/-.

3. The Tenant to pay the Landlord the sum of Kshs 400,000/- within twenty-one (21) days failing which the Tenant shall render vacant possession of the premises known as Resee Guest House.

4. That the matter be mentioned on 23rd March 2021 for further orders.

The consent upon execution by both advocates, was adopted as an order of the Tribunal.

On 23rd March 2021, counsel for the Tenant was absent but his client was in court. Counsel for the Landlord was also present. Whereas the counsel for the Landlord stated that the consent order had been breached, the Tenant did inform the Tribunal that the consent order was recorded without her authority. She however admitted to owing rent in the sum of Kshs 600,000/-, promised to pay Kshs 50,000/- but only managed to pay Kshs 25,000/- on the same date as confirmed by counsel for the Landlord.

Thereafter, the present application was filed.

It is generally accepted that a court cannot interfere with a consent judgement except in such circumstances as would afford good ground for varying or rescinding a contract between the parties (Hiram Vs Kassam (1952) EACA 131, Brooke Bond Liebig (T) Ltd Vs Mailya (1926) EA 226.

A consent judgement or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain to be fulfilled, which are not carried out (see Wasike Vs Wamboko (1978 – 1985) IEA 625.

Regarding the setting aside of consent orders, Justice Musinga in the case of Nakuru HCC Misc Application No 240 of 2002, Republic Vs District Land Registrar Nandi & Another ex-parte Teregei & Another delivered himself as follows;

“Prima facie any order made in the presence and with the consent of counsel is bending on all parties to the proceedings or action and on those claiming under them. Such an order cannot be varied or discharged unless it is obtained by fraud or collusion or by an agreement contrary to the policy of the court or if consent was given without sufficient material facts or in general, for a reason which would enable the court to set aside an agreement.”

In view of the above stated test, does the application herein meet the threshold? The Applicant’s contention is that the advocates then on record entered into a consent agreement without the Applicant’s express instructions, and further the advocates did not explain to the Applicant the full import and implication of the consent orders. The Applicant further contends that the consent did not take into account the investment she had put up in the business premises.

The Applicant has further demanded that an account be taken to determine who owes who what.

When the consent orders were recorded in the Tribunal on 26th February 2021, counsel for both parties were present. They executed the consent on the court record. The consent was only adopted as an order after due execution by said counsel. That the Applicant was also in court when the consent orders were recorded. She states as follows at paragraph 7 of her supporting affidavit;

7. “That on 26th February 2021 I and my advocate attended the Tribunal and I thought my said advocate had complied with the order of filing the replying affidavit and that he was prepared to argue my case as I had spoken to him about my interest in the matter.”

I am therefore satisfied that the consent orders were recorded in the presence of the Applicant and her counsel and counsel for the Landlord.

The Tenant/Applicant on 23rd March 2021 when the matter came up for mention indicated to court that the advocate acting for her signed the consent without her authority. I do not find merit in this contention as I have already stated that there is evidence by the Applicant herself that she was in court/Tribunal on 26th February 2021 when the orders were recorded. The Applicant did not raise any issues with the consent on the day it was recorded. She had counsel in any event.

Further on 23rd March 2016 the Tenant had admitted to owing rent in the sum of Kshs 600,000/- out of which she promised to pay Kshs 50,000 but only managed to pay Kshs 25,000/-. The issues of investments and accounts were neither raised on 26th February 2021 or on 23rd March 2021. I do not seem to see from the record any firm contest on the rent owing.

The consent order is clear that the only disputed rent was Kshs 60,153/-. That is the only matter for determination as agreed by the parties.

I have gone through the affidavit of the Applicant in support of her application and I am unable to find any fraud or misrepresentation on the part of the parties who executed the consent, much less so the Landlord/Respondent.

The Applicant has not satisfied the standard required to set aside a consent order, and I decline to set aside the consent orders recorded in court on 26th February 2021.

By order No 3 of the consent, the Applicant agreed to vacate the suit premises if she was unable to pay Kshs 400,000 within 21 days. There is no allegation nor evidence that the said sum of money was paid.

The only option open to the Applicant is therefore to vacate the premises as she had consented to.

In view of the finality of the consent order, I do find that no purpose would be served by ordering for the hearing of the Landlord’s motion as requested by the Applicant. The consent orders compromised this action in the terms agreed by the parties.

In conclusion, the Applicant’s/Tenant’s notice of motion dated 29th March 2021 is hereby dismissed with costs to the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Court:

RULING DATED AND DELIVERED VIRTUALLY BY HON. CYPRIAN MUGAMBI

NGUTHARI THIS 22ND DAY OF JULY, 2021 IN THE PRESENCE OF MISS WACEKE

FOR THE LANDLORD AND IN THE ABSENCE OF COUNSEL FOR THE TENANT AND THE TENANT.

HON CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL