[2024] KEBPRT 173 (KLR)

Njeri v Rimita (Tribunal Case E029 of 2023) [2024] KEBPRT 173 (KLR) (20 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 173 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E029 of 2023

P May, Member

February 20, 2024

Between

Pauline Njeri

Tenant

and

Grace Kananu Rimita

LandLady

Ruling

1. The Tribunal delivered a ruling 19th October, 2023 which determined the dispute between the protagonists herein. The tenant was aggrieved by the said ruling and approached the Tribunal seeking for review vide the notice of motion application dated 24th October, 2023. The grounds relied upon by the tenant include the argument that the landlord had not adduced any evidence of her being a nuisance and that the tenant had been granted costs that would cover the rent up to April, 2024.

2. The application has been opposed through the Replying affidavit sworn on 18th January, 2024. The landlady has dismissed the application as being frivolous and an attempt by the tenant to proffer an appeal before this Tribunal. The landlady further stated that the application was overtaken by events as the tenant had vacated the demised premises thus the Tribunal was divested of the jurisdiction to hear and determine the present application. The parties asked the Tribunal to consider their respective affidavits in making a determination. I would therefore proceed as follows:

3. 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.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;

4. This power of the Tribunal was elaborated by the High Court in the case of Spares Corner (K) Ltd. v 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.”

5. Based on the foregoing, it is therefore clear that this Honourable Court 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 Court required to consider an application to vary or rescind its earlier orders?

6. In response to the above question, I stand guided by the decision in the case of Transallied 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 the Civil Procedure Rules.”

7. 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.”

8. 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 Rules which 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.

9. 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.

10. With this background in mind, I shall proceed to analyse whether the Tenant herein has met the threshold to warrant review of the orders issued by this Honourable Tribunal on 19th October 2023.

11. From the onset, there is no doubt that the present application was filed in a timeous manner as the same was filed less than 10 days after the delivery of the impugned ruling.

12. The tenant has stated that the Tribunal overlooked the fact that there was a previous order which granted them costs which covered the rent up to April, 2024. The tenant also challenged the Tribunal’s finding that he had become a nuisance on the demised premises.

13. The reasons advanced above do not in my view disclose any error nor new facts to warrant the Tribunal to review the orders issued on 19/10/2023. The tenant has failed to attach the order issued in BPRT No. E023 of 2022. The present application is an appeal disguised as an application for review. The Tribunal declines the invitation to sit on its own appeal.

14. I finally note that the tenant has not disputed the fact that she was no longer in possession of the suit premises and her application had been overtaken by events. The landlady having taken possession of the demised premises pursuant to the Tribunal order the position cannot be reversed in line with the decision in the Case of Re Hebtulla Properties Ltd [1979] eKLR at page 9/11 wherein Section 12(1) (e) of Cap. 301 Laws of Kenya was discussed.

15. Flowing from the foregoing analysis, it is clear that the application is only ripe for dismissal. The application dated 24th October, 2023 is dismissed in its entirety and the orders issued on 19th October, 2023 will subsist. The landlady is awarded costs of the application assessed at Kshs. 15,000/-.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF FEBRUARY 2024HON. PATRICIA MAYMEMBER20. 02. 2024Delivered in the presence of the Tenant in person and in the absence of the Landlord