[2022] KEBPRT 206 (KLR)

Mutahi v Mureithi (Tribunal Case E001 & E003 of 2021 (Consolidated)) [2022] KEBPRT 206 (KLR) (Civ) (13 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 206 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E001 & E003 of 2021 (Consolidated)

Gakuhi Chege, Vice Chair

May 13, 2022

Between

Simon Gakumu Mutahi

Applicant

and

Faith Muthoni Mureithi

Respondent

Ruling

1. On 19th March 2021, this Tribunal made a ruling in which the landlord’s notice to terminate the tenant’s tenancy in plot no. Aguthi/Gatitu/4995 was upheld and an order for vacant possession issued. The said ruling was made ex-parte as the tenant did not participate in the proceedings conducted on 17th March 2021 despite service.

2. The tenant was subsequently evicted from the demised premises by the landlord with assistance of OCS Nyeri Police Station.

3. Through his application dated 29th April 2021, the tenant is seeking in material part that the Respondent be restrained from taking possession of his workshop yard or letting it to third parties until this matter is heard and determined.

4. He is further seeking to be allowed to re-erect his workshop shed to enable him continue with his business pending hearing and determination of the case.

5. Under prayer 6 of the application, the applicant seeks that the Respondent do pay to him damages for loss of business at the rate of Kshs.100,000/- with effect 15/4/2021.

6. Prayer 7 seeks for compensation or return of lost tools of trade during the irregular eviction on 15th April 2021 in the sum of Kshs.340,000/- plus costs of the application.

7. It is the applicant’s deposition in the supporting affidavit of 25th April 2021 and the grounds on the face of the application that he was never served with any document in respect of this matter as provided under section 6(2) and 16 (b) of Cap. 301 Laws of Kenya.

8. He states that he came to know about the case on 15th April 2021 when the Respondent visited the workshop accompanied by unknown people and police and he was handcuffed whereupon his property was thrown out therefrom.

9. On the following day while inspecting his goods, the applicant was assaulted by the Respondent’s sons and his left arm was broken as per annexures ‘SG2’.

10. It is the applicant’s contention that the attempted execution of the order on 15th April 2021 was irregular and unlawful as police gave the Respondent security to demolish his workshop shed.

11. The applicant therefore prays for an order to be supplied with pleadings in case no. 01 of 2021 and payment of compensation for damage and loss suffered by him.

12. The application is opposed through the Respondent’s replying affidavit deposed on 26th May 2021 wherein she deposes that the applicant was served on 31st October 2020 with notice of termination of tenancy which he never complied with in terms of annexure ‘FMM1 (a) and (b)’.

13. As a result, the tenancy notice took effect on 31st December 2020 but the tenant refused to vacate or give vacant possession of the premises. The tenant’s lease also expired on 31st December 2020 and is not renewable.

14. As the tenant was not cooperating or willing to give vacant possession of the premises the Landlord/Respondent moved this Tribunal for eviction orders which were granted on 12th April 2021 as per annexure ‘FMM2’.

15. It is the Respondent’s case that the tenant had been served with pleadings on 13th January 2021 as per annextures “FMM3 & 4”. As such the police lawfully executed the orders issued on 12th April 2021. As such, it is the contention of the Respondent that the instant application is an abuse of court process.

16. The application was ordered to proceed by way of written submissions but only the applicant’s counsel complied.

17. I am now required to determine the following issues:-a)Whether the applicant is entitled to the reliefs sought in the application dated 19th March, 2021. b)Who is liable to pay costs of the application?

18. It is important to note that the said application is predicated upon alleged lack of service of court process. The Respondent filed an affidavit of service sworn on 14th January 2021 by one Albert Murage Kagwanja a process server authorized to serve court process. The said affidavit of service was filed in court on 17th March 2021. The same explains how service was effected.

19. It is submitted by the tenant’s counsel that the said service did not comply with section 4(6) of Cap. 301, Laws of Kenya. The tenant’s counsel further submits that whether the process server did indeed call the applicant cannot be proven and that no evidence was produced to affirm his statement.

20. It is imperative to note that the tenant did not file a further affidavit to controvert the issue of service upon receipt of the replying affidavit. There was equally no application to call the process server for cross-examination. In the case of Joseph Nathaniel Kipruto Arap Ngok & Another – vs- EABS Bank Limited (2014) eKLR with approval in Secretary & Another – vs- Lucia Ndinda Musyoka t/a Jocia Stores (2019) eKLR at page 5/7 1670 by Chitaley and Annaji Rao as follows:-“There is a presumption of service as stated in the process server’s report, and the burden lies on the party questioning it to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest, it would normally be considered sufficient evidence of regularity of the proceedings. But if the fact of service is denied, it is desirable that that process server is put in the witness box and opportunity of cross-examination given to those who deny service”.

21. The applicant’s failure to summon the process server is fatal to his application as I have no reasons to doubt that indeed service was effected in the manner deposed therein.

22. It is also important to note that the applicant has not sought to set aside the ruling delivered on 19th March 2021 and it is inconceivable how the other reliefs can be granted in absence of such an application.

23. Finally, I note that the applicant has not denied that he was served with a notice to terminate tenancy marked “FMM1 a” to which he failed to file a reference as required under section 6(1) of Cap. 301 Laws of Kenya. Section 10 of the said Act provides as follows:“Where a landlord has served a notice in accordance with the requirements of section 4 of this Act, on a tenant, and the tenant fails within the appropriate time to notify the landlord of his unwillingness to comply with such notice or to refer the matter to a Tribunal, then subject to section 6 of this Act, such notice shall have effect from the date therein specified to terminate the tenancy, or to terminate or alter the terms and conditions thereof or the rights or services enjoyed thereunder” (emphasis mine).

24. In absence of a reference against the termination notice, the tenant had no business remaining in occupation of the Landlord’s premises and even if he attended court on 17th March 2021 when the matter proceeded ex-parte, the landlord’s application dated 8th January 2021 was for allowing.

25. In the premises, I find and hold that the applicant is not entitled to the reliefs sought in the application dated 19th March 2021.

26. As regards costs, they are in trial court’s discretion and always follow the event unless for good reasons otherwise ordered. I have no good reasons to deny costs to the Respondent.

27. In conclusion therefore, the orders that commend to me are:-i.The application dated 19th March 2021 is hereby dismissed with costs to the Respondent.ii.The Respondent’s costs are assessed at Kshs.10,000/- all inclusive.iii.This file is ordered closed.

RULING DATED, SIGNED AND DEVELIVERED VIRTUALLY THIS 13TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the absence of parties who had been duly notified through e-filing portal.