[2022] KEBPRT 771 (KLR)

Oloo & another v Mwinyi (Tribunal Case E322 of 2022) [2022] KEBPRT 771 (KLR) (Civ) (21 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 771 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E322 of 2022

Gakuhi Chege, Vice Chair

September 21, 2022

Between

Luke Odongo Oloo

1st Applicant

Rose Achieng

2nd Applicant

and

Ramadhan Mwinyi

Respondent

Ruling

1. The tenant moved this tribunal through a motion dated May 11, 2022 seeking for an order of stay, setting aside and/or suspension of enforcement and/or execution of the orders of May 11, 2022 and all consequential processes arising therefrom.

2. On May 11, 2022, this tribunal allowed the landlords’ application dated April 12, 2022 in terms of prayers 2 and 3 thereof. in so doing, the tribunal allowed the landlords to levy distress for recovery of Kshs 25,000/- in addition to rent for May 2022. The said order was made in absence of the tenant who had not filed a response to the application.

3. In his supporting affidavit sworn on May 4, 2022, the tenant blames poor network connection for his failure to attend the virtual court session saying that he has a strong case against the landlord as the suit premises had been sold to the tenants wife in October 2021 and the landlord was trying to get back there using unorthodox means.

4. According to the tenant, his wife one Chebet Yasmin was a tenant in the suit premises up to October 2021 and has not paid rent after assuming ownership of the premises.

5. As such, the tenant states that his failure to attend court was not deliberate as he has been willing to have the case determined save for the poor network connection.

6. The application is opposed through the replying affidavit of the 1st landlord sworn on May 16, 2022 wherein it is deposed that the tenant was supposed to vacate from the suit premises by September 30, 2021.

7. The 1st landlord contends that it is a blatant lie for the tenant to claim that the single room was sold to his wife out of an entire premises without attaching any sale agreement.

8. The landlords therefore pray for dismissal of the tenant’s application, discharge of the status quo order and for an order of payment of rent arrears and vacant possession to be issued against the tenant.

9. I am required to determine the following issues:-a.Whether the tenant is entitled to the reliefs sought in the application dated May 11, 2022. b.What further orders ought to issue in this matter under section 12(4) of cap 301, Laws of Kenya?c.Who is liable to pay costs?.

10. The principles for setting aside an ex-parte order or judgment were settled in the locus clasicus case of Shah v Mbogo &another (1967) EA 117 at page 12 letter B-C as follows:-“I have carefully considered in relation to the present application the principles governing the exercise of the court’s discretion to set aside a judgment obtained ex-parte. This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice”.

11. I have looked at the tenant’s application against the above principles and I am unable to find any basis upon which I should exercise the discretion to set aside in his favour. He has not clearly explained the challenges he had with network and where exactly he was trying to log into the virtual court session on the hearing date.

12. I also note that he does not exhibit any agreement for alleged purchase of the suit premises in October 2021 by his wife neither does he show that the amount of rent arrears claimed by the landlords is not payable. As such he does not have a reasonable defence to the landlords’ case. It is worth noting that his alleged wife has also not sworn any affidavit in support of the claim of purchase of the suit premises despite the landlords’ denial thereof. It is also not clear to me how the tenant’s wife purchased one shop out of a larger tenement/building owned by the landlords.

13. Under section 12(4) of cap301, this Tribunal is empowered to investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant and to make such order thereon as it deems fit.

14. I note that the tenant has not denied the contention by the landlords that he was to vacate from the suit premises by September 30, 2021 but now claims without any evidence that his wife purchased the same. He has not paid any rent since October 2021 and has thus continued to occupy the suit premises rent free to the chagrin of the landlords who are said to be retirees who rely on the premises to eke a livelihood. I shall exercise my powers under section 12(1) (e ) of cap301. Laws of Kenya to order vacant possession against the tenant in terms of prayer (4) of the application dated April 12, 2022.

15. In regard to costs, the same are in this tribunal’s discretion under section 12(1) (k) of cap301, Laws of Kenya. I shall award costs to the landlords.

16. Flowing from the above, the final orders which commend to me are:-i.The tenant’s application dated May 11, 2022 is hereby dismissed with costs.ii.The tenant shall pay all rent in arrears forthwith and in default the landlords are allowed to use lawful means to recover the same up to the date of delivery of vacant possession of the suit premises by the tenant.iii.The tenant shall deliver vacant possession of the suit premises forthwith on account of non-payment of rent and in default shall be evicted therefrom by a licensed Auctioneer who shall be provided with security by OCS of the police station within whose jurisdiction the premises are situate.iv.The tenant shall pay costs of Kshs 15,000/- in addition to the sum of Kshs 5,000/- earlier awarded to the landlords.It is so ordered.

RULING SIGNED & VIRTUALLY DELIVERED THIS 21ST DAY OF SEPTEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Respondent/Tenant presentApplicant/Landlord absent