[2021] KEBPRT 406 (KLR)
The court found that the affidavit of service did not provide sufficient evidence that all relevant documents, as referenced in the affidavit, were served upon the respondents. Only the order issued on 31st May 2021 was attached, and there was no proof that the other documents were served. As proper service is...
Source-derived case information.
- Citation
- [2021] KEBPRT 406 (KLR)
- Parties
- Applicant: Nicholas Nganga Waiyaki t/a Migingo Hotel; Respondent: Esther Njeri Kagunda; Respondent: Eunice Wanjiru Mwaria
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E158 of 2021
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Service of Application
- Outcome
- Application stood over for proper service; interim orders extended.
- Legal Topics
- Landlord Tenant Disputes, Service of Process, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nicholas Nganga Waiyaki t/a Migingo Hotel
Applicant
Esther Njeri Kagunda
Respondent
Eunice Wanjiru Mwaria
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Service of Application
Legal Issues
- 1 Whether service of the application dated 28th May 2021 was properly effected upon the respondents.
- 2 Whether the court should allow the application in the absence of a response from the respondents.
Ratio Decidendi
The court found that the affidavit of service did not provide sufficient evidence that all relevant documents, as referenced in the affidavit, were served upon the respondents. Only the order issued on 31st May 2021 was attached, and there was no proof that the other documents were served. As proper service is fundamental to fair hearing and due process, the court was not satisfied that service had been properly effected. Consequently, the court ordered that the respondents be served afresh and a proper affidavit of service be filed before the matter could proceed.
Court Disposition
Application stood over for proper service; interim orders extended.
Orders
- Respondents to be served afresh with the application dated 28th May 2021.
- A proper affidavit of service to be filed after service.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO E158 OF 2021 (NAIROBI)
NICHOLAS NGANGA WAIYAKI T/A
MIGINGO HOTEL.....................................................................TENANT/APPLICANT
VERSUS
ESTHER NJERI KAGUNDA..................................LANDLORD/1ST RESPONDENT
EUNICE WANJIRU MWARIA..............................LANDLORD/2ND RESPONDENT
RULING
The application dated 28th May 2021 came up for inter partes hearing on 16th June 2021. On the said date, Mr Mbugua counsel for the Applicant informed the court that;
“We have served the Respondent. An affidavit of service is on record. There is no response. We pray that our application dated 28th May 2021 be allowed.”
I have since perused the affidavit of service in the matter filed/sworn by one Stephen M. Wanjiru on 14th June 2021.
The deponent states that the Respondents requested that he effects service upon them via whatsapp and which he did as per the averment at paragraph 4 of his said affidavit.
At paragraph 5 of the affidavit, the deponent states;
“That I do hereby return the affidavit with copies of the said documents and screen shots of the same herein attached.”
The only documents attached to the affidavit of service is the order issued on 31st May 2021. There is no evidence that the other documents referred to at paragraph 2 of the affidavit were served upon the Respondents. Consequently, I am not satisfied that service in this matter was property effected. I therefore order that the Respondents be served afresh and a proper affidavit of service be filed thereafter.
I will extend the orders granted on 31st May 2021 and further order that the application dated 28th May 2021 be served for hearing on 25th August 2021.
The application dated 31st May 2021 to be heard on 9th September 2021.
The Registry to serve parties.
Interim orders are extended.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
Ruling read and delivered virtually by Hon Cyprian Mugambi Ngutharithis 4thday of August 2021in the absence of the parties.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL