[2021] KEBPRT 384 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 827 OF 2020 (NAIROBI)

MAJOR STEPHEN JEFWA.........TENANT

VERSUS

LUCY WANJIRU MBURU.....LANDLORD

PLANET OUTLETS.........................AGENT

RULING

The Tenant/Applicant’s notice of motion dated 4th February 2021 seeks the following orders;

1. Spent.

2. That this honourable Tribunal be pleased to set aside the order of the 15th of December 2020.

3. That the Tribunal be pleased to reinstate the application by the Tenant dated the 5th of October 20020.

4. Spent.

5. Spent

6. Spent.

7. That the OCS Ruai Area Police Station ensures compliance of the orders herein.

8. Costs of the application.

The grounds upon which the application is based on the affidavit in support thereof may be summarized as follows;

1. That the Tenant/Applicant filed the application dated 5th October 2020 but due to an inadvertent mistake he failed to attend court.

2. The Tenant, a Kenya Defences Soldier was placed on duty on the days he was supposed to attend court.

3. The Tenant prays to be accorded the right to be heard in good faith.

4. The Tribunal has power to grant the orders sought.

5. The Respondent will suffer no prejudice if prayers herein sought are granted as they will have their right of reply.

6. That the Applicant was placed on duty at Moyale, a fact he had not foreseen.

7. That the Applicant is interested in pursuing his application dated 5th October 2020.

8. That the premises remain closed exposing the Applicant to great loss as he had improved the premises.

9. That the Tenant/Applicant is willing to clear the rent arrears as soon as the premises are opened.

The Respondent did file her replying affidavit. All the parties have filed their written submissions.

I have considered her affidavit. The Tenant’s submissions may be summarized as follows (where relevant to his application);

1. That the application dated 5th October 2020 was initially heard ex-parte and fixed for inter-partes hearing on 15th December 2020.

2. That the Tenant was sent to Moyale around the time of hearing the application and that his application was dismissed for non-attendance.

3. That that is not to say that the Tenant did not attend court on that day, he attended albeit late after the call over.

4. That the Tenant was on duty and that is why he attended the court late.

5. That the Respondent has not demonstrated sufficient grounds why the application should not be allowed. Her affidavit deviates from the issues raised in the Tenant’s application.

6. It is in the best interest of justice that the application dated 5th October 2020 be reinstated.

The Landlady’s/Respondent’s submissions may be summarized as follows;

1. That the Tenant is in rent arrears amounting to Kshs 399,000/- as at June 2021.

2. That the Applicant’s motion was dismissed for non-attendance on 15th December 2020.

3. That this application is a tactic to delay the payment of rent.

4. That the Respondent has not locked the suit premises as alleged.

5. That the court has discretion to set aside a judgement or order to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who seeks to obstruct or delay the course of justice.

6. That the explanation given for the absence is not plausible. The Applicant has not been honest about the reason for his absence.

The only issue that arises for consideration in this application is whether the Applicant is entitled to the orders sought in his application.

The only reason the Tenant’s application dated 5th October 2020 was dismissed was because the Tenant did not attend court to prosecute the same. The reason the Tenant gives for his absence was that he had been posted on duty to Moyale, he is an Officer of the Kenya Defence Forces. I do note that the Landlady has stated that on the date of the hearing, the Tenant appeared in court late after his matter had been dismissed.

Counsel for the Tenant in his submissions has also indicated that his client came to court late.

He states:

“Being in court that day does not mean the Tenant was not on duty, he was and that is why he appeared in court late.”

It is not stated that the Tenant travelled from Moyale on the hearing date and arrived in court late. I do not buy the narrative by the Tenant that he was in Moyale on official duties on the 15th December 2020 when his application came up for hearing. It is a desperate attempt by the Tenant to salvage his application which though understandable in the circumstances is unfortunate. There is indeed no evidence that he was posted to Moyale on the material day.

I am, from the submissions of counsel for the Applicant and from the affidavit of the Landlady, convinced that indeed the Tenant attended the Tribunal on 15th February 2020 but found that his application dated 5th October 2020 had already been dismissed.

The Tenant cannot therefore be said to be a person who is deliberately seeking to undermine or obstruct the cause of justice or delay the cause of justice (see Shah and another Vs Mbogo [1967] EA 117 and Ivita Vs Kyumbu [1984] KLR 44.

In Garissa ELC No 9 of 2018 Abdi Noor Shurie Vs Bundid, the court stated;

“I note that the Plaintiff nonetheless filed his documents in compliance with order 11 although after the suit had been dismissed and taking cognizance of Article 50 of the Constitution on the right to be heard and hold that where a suit can be prosecuted and justice done in spite of the delay in its prosecution, a party should be given a chance to do so.

It is a serious matter to shut out a party from being heard unless such party is deliberately seeking to undermine or obstruct the course of justice.”

In view of the Tenant’s attendance at the Tribunal on 15th December 2020 albeit late, I do find that he had sufficient interest to prosecute his application and do hereby grant him the chance to do so. The Tribunal has power under section 12(1)(i) to vary or rescind any order made by the Tribunal under the provisions of the Act.

Pursuant to the said powers, I allow the Tenant’s application dated 4th February 2021 in the following terms;

1. The orders issued by the Tribunal on 15th December 2020 dismissing the Tenant’s/Applicant’s application dated 5th October 2020are hereby set aside.

2. The Tenant’s application dated 5th October 2020is reinstated.

3. The Tenant’s application dated 5th October 2020be fixed for hearing.

4. Costs in the cause.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

RULING READ AND DELIVERED VIRTUALLY BY HON CYPRIAN MUGAMBI NGUTHARI THIS 19TH DAY OF JULY, 2021 IN THE ABSENCE OF THE PARTIES.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL