[2025] KEBPRT 297 (KLR)

Mbau v Mahiga Produce & Co. Ltd (Tribunal Case E096 of 2023) [2025] KEBPRT 297 (KLR) (19 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 297 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E096 of 2023

N Wahome, Chair & Joyce Murigi, Member

May 19, 2025

Between

Patrick Warui Mbau

Applicant

and

Mahiga Produce & Co. Ltd

Respondent

Ruling

1. This matter is for Ruling on the Tenant’s application dated 10/2/2025. The same is anchored on Section 1A, 1B, 3 3A and 99 of the civil procedure Act 2010, order 45 Rule 1 and 2 and under order 51 Rule 1 of the Civil Procedure Rules 2010 and all enabling provisions of the law. The Tenant sought for the following reliefs”-a.That this Honourable court be pleased to review, vary or clarify its Ruling delivered on the 3/5/2024. b.That in granting prayer 1, this Honourable court do render itself in terms of prayer “D” of the further amended Notice of Motion dated 1/12/2023 and filed on the 8/12/2023. c.That this Honourable court do issue any other order it may deem fit to grant in the best interests of justice.d.That the costs of this application be borne by the Respondent.

2. The Landlord did not respond to the application and the Tenant prosecuted the same exparte. The main contention by the Tenant is that his prayer No. “D” in the further amended notice of motion dated 1/12/2023 and filed on the 8/12/2023 was never considered by the court.

3. Prior to this Application, the Tenant had written a letter to this court complaining that:-“I refer to the Ruling made on the 3/5/2024 and the subsequent order extracted on the 13/5/2024 from the reading of the ruling, my claim was wholly allowed save for the prayer for costs, as per the further amended application dated 1/12/2023. The subsequent order however seemed to have left out the Kshs.220,323. 52/-.Kindly therefore re-issue an amended order including the said prayer”.

4. In a rejoinder to the said letter, the court had stated thus:-“There is no claim for Kshs.220,232. 52 by the Tenant in either his reference dated 5/9/2023 nor in the application of the even date and amended on the 18/10/2023. The orders to issue must be in strict compliance with the said reference and the amended application”.

5. Though the further amended notice of motion dated 1/12/2023 seems to have been filed at this Tribunal’s Nyeri sub-registry, the same was never uploaded in the CTS and the same was therefore not available for consideration when the orders sought to be reviewed herein were made on the 3/5/2024. The said orders were made on the strength of the pleadings then on record.

6. In our view, even if the further amended notice of motion dated 1/12/2023 had been brought to the attention of this court, the same could not have carried any consequences with it. This is because, the orders of this court made on the 21/9/2023, 12/10/2023, 30/10/2023 and 28/11/2023 the pleadings herein had closed long before the purported further amended notice of motion dated 1/12/2023 was filed in court.

7. There is also no evidence on record that leave was ever sought nor granted for the further amendment of the notice of motion dated 1/12/2023 as required under Order 8 Rule 3 of the Civil Procedure Rules. The order provides that:-“Subject to order 1, Rule 9 and 10, order 24 rules 3, 4, 5 and 6 and the following provisions of this Rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it my direct, allow any party amend his pleadings”.

8. Having not sought such leave and the court having not acted on its own motion to accommodate the further amended notice of motion dated 1/12/2023, the same was rendered otiose and of no purpose and the pleadings on record for consideration by this court is the reference dated 8/9/2023 and the amended motion dated 18/10/2023.

9. We are also of the view that even if the application dated 1/12/2023 had been available for consideration, that the same had any chances of success. The purported claim of Kshs.220,328,3. 52 was not pleaded in the reference. It was also not proved nor attempted to be proved.

10. In the celebrated case of Hahn – vs- Singh Civil Appeal No. 42 of 1983 (1985) KLR 716, the court of Appeal held as follows:-“Special damages must not only be specifically claimed (pleaded) but also strictly proved……….. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the Acts themselves”.

11. We therefore do not find any merit in the application dated 10/2/2025 and proceed to dismiss the same with no orders as to costs.

RULING DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF MAY, 2025. HON. NDEGWA WAHOME, MBS. - PANEL CHAIRPERSONHON. JOYCE MURIGI - MEMBERBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of M/S Nanjala Tenant/Applicant and in the absence of Landlord/Respondent.