[2024] KEBPRT 120 (KLR)

Munyaka v Maingi (Tribunal Case E532 of 2022) [2024] KEBPRT 120 (KLR) (24 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 120 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E532 of 2022

P May, Member

January 24, 2024

Between

Victor Kioko Munyaka

Tenant

and

George Musau Maingi

Landlord

Ruling

1. The tenant filed the application dated 19th June, 2023 seeking for orders to review the ruling delivered on 31st January, 2023 and stay any consequential orders thereto. The application is premised on the grounds set out on the application which include the assertation that the Tribunal rendered its judgement without considering the merits of their reference.

2. The application has been vehemently opposed by the landlord who indicated that the tenant has been a notorious frivolous litigant who has been filing references to frustrate the landlord from using the demised premises. He reiterated that litigation had to come to an end. He therefore prayed that the application be struck out.

3. The parties elected to canvass the application by way of written submissions. I have considered the submissions and the record and wish to proceed as follows:

4. At the onset, the Tribunal has to decide the merits of the application for review of the ruling delivered on 31/1/2023. It is clear that in exercising the powers conferred under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, this Honourable Court must restrict itself to the powers conferred to it under Section 12 of the said Act.

5. Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act clearly stipulates as follows:12. A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—(i)to vary or rescind any order made by the Tribunal under the provisions of this Act;

6. This power of the Tribunal was elaborated by the High Court in the case of Spares Corner (K) Ltd. Vs Maram Noormohamed, Abdul Hamid Noormohamed,Ismael Noormohamed[2003] eKLR, in which the Tenant sought for review of a decision issued by this Tribunal, after the Tenant had been evicted from the suit property and the Tenancy relationship between the parties severed. The High Court in affirming the power of this Tribunal to vary or rescind its orders as provided under Section 12 (i) of the Act, and in remitting the matter back to the Tribunal for consideration on merit despite the execution of earlier orders stated as follows:“It is difficult to see under what circumstances a Tribunal would be asked to vary or rescind any order made under the Act if it cannot reconsider its own orders dismissing a reference and ordering a tenant’s eviction. The Act provides for it and it is in any event a fundamental principle of Justice.”

7. Based on the foregoing, it is therefore clear that this Honourable Tribunal has the power to review or vary or rescind earlier orders issued by it. Subsequently, this raises the question on what grounds or under what circumstances is this Honourable Tribunal required to consider an application to vary or rescind its earlier orders?

8. In response to the above question, I stand guided by the decision in the case ofTransallied Limited v Sakai Trading Limited[2016] eKLR, where the Environment and Land Court addressed its mind on the grounds that should guide this Court in exercising its review powers as follows:“The appeal before us is against the decision of the tribunal that was made on 1st July 2011 by which the tribunal declined to review its order made on 3rd September 2010 striking out the Appellant’s complaint for want of jurisdiction. What we have been called upon to determine is whether the tribunal acted correctly in rejecting the Appellant’s application for review. Section 12(1) (i) of the Act gives the tribunal power to vary or rescind any of its orders. The Act does not provide for the circumstances under which the tribunal can exercise that power…We are of the view that the provisions of the Civil Procedure Act and the rules made thereunder would apply to the proceedings before the tribunal unless expressly stated otherwise in the Act and the regulations made thereunder which we have referred to above…What we are to determine is whether the Appellant’s application for review before the tribunal met the threshold set out under Order 45 Rule 1(1) of theCivil Procedure Rules.”

9. The grounds in which a Court may exercise its power of review are clearly stated under Order 45 rule 1(1) of the Civil Procedure Rules. The said provision provides as follows:“any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or by a decree or order which no appeal is allowed and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or errors apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree or order may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

10. Therefore, in order for the Tenant herein to succeed in this application, he must satisfy either of the conditions stipulated in Order 45 Rule 1 of the Civil Procedure Ruleswhich are:a)Discovery of a new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made;b)A mistake or error apparent on the face of the record; andc)Any other sufficient reason.

11. In addition to the above grounds, the law further requires that an application for review of orders must be made by the Applicant without unreasonable delay

12. In the present application, the tenant has faulted the decision of the Tribunal as being wrong in law and untenable thus he has been unjustly pushed away from the seat of justice. In my view, the present review is an appeal that has been disguised as an application for review. This Tribunal cannot sit on its on appeal and would refuse an invitation to do so. The tenant has challenged the merits of the previous decision outside the laid down grounds for review.

13. In the circumstances, the Tribunal arrives at the conclusion that the application is only ripe for dismissal. The application is dismissed with costs awarded to the landlord.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF JANUARY 2024HON. PATRICIA MAYMEMBER