[2022] KEBPRT 246 (KLR)

Musau v Musau & another (Tribunal Case 869 of 2019) [2022] KEBPRT 246 (KLR) (Civ) (14 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 246 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 869 of 2019

Gakuhi Chege, Vice Chair

July 14, 2022

Between

Robert Mutyango Musau

Applicant

and

Christopher Musyoka Musau

1st Respondent

Lilian Musau

2nd Respondent

Ruling

1. By a motion dated November 18, 2021, the respondents moved this Tribunal seeking that the application dated September 16, 2019be dismissed for want of prosecution. They further seek for costs of the application herein as well as those of application dated September 16, 2019.

2. The application is supported by the affidavit of Ambrose Muthama Mulandi sworn on November 18, 2021wherein it is deposed that the application dated September 16, 2019was certified urgent and fixed for hearing on October 4, 2019. The original applicant has since taken no steps to prosecute his application over 2 years down the line.

3. The applicant had sought to challenge the termination notices issued by the respondents which have since expired and the tenant/applicant has not been paying rent.

4. As a result, the respondents claim that the proceedings were instituted with the sole intention of frustrating and holding them hostage. The failure to prosecute the application dated September 16, 2019is intentional and deliberate and it was just and fair to grant the orders sought in the application.

5. The applicant filed a replying affidavit which was not paid for but I shall nevertheless consider its contents. The affidavit was sworn on January 17, 2022 wherein he states that the respondents have no audience before the Tribunal on account of failure or refusal to comply with orders of 20th September and October 14, 2019.

6. He further states that the landlord/tenant relationship between the parties herein is yet to be resolved and as such, the application for dismissal for want of prosecution is premature.

7. He deposes that the dismissal applied for is draconian and may not serve the ends of justice.

8. I am required to determine the following issues:-(a)Whether the application dated September 16, 2019 ought to be dismissed for want of prosecution.(b)Who is liable to pay costs?

9. The proceedings herein were instituted on September 16, 2019 by the applicant seeking to challenge notices of termination of tenancies dated September 2, 2019. It is to be noted that the said application was not accompanied with any reference within the meaning and interpretation of section 6 of cap 301, Laws of Kenya.

10. The application is opposed through the 1st respondent’s affidavit in reply sworn on October 24, 2019. The application was certified urgent on September 16, 2019 and fixed for hearing on October 4, 2019.

11. On October 4, 2019, the application was adjourned to January 14, 2020, to enable the respondents file their response. On January 14, 2020 the matter was adjourned to March 5, 2020. On March 5, 2020, the matter was again adjourned to May 7, 2020. No other action was taken by the applicant/tenant thereafter.

12. The tenant/applicant has not given any reason why no action was taken after March 5, 2020 towards prosecution of the application dated September 16, 2019. In absence of such an explanation, it is not possible for this Tribunal to understand his inaction and the only option or conclusion one can make is that there are no reasons for the same.

13. I have also noted that the said application is not accompanied by a reference under section 6 of cap 301 Laws of Kenya. The said section under subsection (1) provides as follows:-“6(1) A receiving party who wishes to oppose a tenancy notice and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice before the date upon which such notice is to take effect refer the matter to a Tribunal and subject to the determination of the reference by the Tribunal.

14. In absence of such a reference, the application has no legs to stand on and is a candidate for dismissal for being incompetent.

15. As regards costs, the same are in the court’s discretion but always follow the event unless for good reasons otherwise ordered. I have no reasons to deny the respondents/Landlords costs.

16. In conclusion therefore, the following orders commend to me:-i.The application dated November 18, 2021 is allowed and consequently, the tenant’s application dated September 16, 2019 is dismissed with costs to the landlords/Respondents.ii.The respondents/Landlords are awarded costs of Kshs 15,000 against the tenant.It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 14TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Lengabanga for the ApplicantKirura holding brief for Mutua for Respondents