[2023] KEBPRT 33 (KLR)
The Tribunal found that all issues raised in the applicant's motion had already been addressed in the ruling of September 21, 2022. Entertaining the application would amount to sitting on appeal against its own decision, which is not permissible under the principles governing review. The Tribunal emphasized that...
Source-derived case information.
- Citation
- [2023] KEBPRT 33 (KLR)
- Parties
- Applicant: Luke Odongo Oloo; Applicant: Rose Achieng; Respondent: Ramadhan Mwinyi
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E322 of 2022
- Procedural Posture
- Review Application / Ruling on Application for Review and Stay of Execution
- Outcome
- application dismissed
- Judges
- Gakuhi Chege
- Legal Topics
- Review of Tribunal Orders, Stay of Execution, Tenancy Disputes, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luke Odongo Oloo
Applicant
Rose Achieng
Applicant
Ramadhan Mwinyi
Respondent
Procedural Posture
Review Application / Ruling on Application for Review and Stay of Execution
Legal Issues
- 1 Whether the Tribunal should review or stay its ruling delivered on September 21, 2022.
- 2 Whether the issues raised by the applicant constitute valid grounds for review under the applicable legal principles.
Ratio Decidendi
The Tribunal found that all issues raised in the applicant's motion had already been addressed in the ruling of September 21, 2022. Entertaining the application would amount to sitting on appeal against its own decision, which is not permissible under the principles governing review. The Tribunal emphasized that review is only available to correct a self-evident error or omission, not to re-argue matters already determined or to challenge the correctness of the decision. As such, the application for review and stay was dismissed.
Court Disposition
application dismissed
Orders
- The application dated September 23, 2022 is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
Oloo & another v Mwinyi (Tribunal Case E322 of 2022) [2023] KEBPRT 33 (KLR) (2 February 2023) (Ruling)
Neutral citation: [2023] KEBPRT 33 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E322 of 2022
Gakuhi Chege, Vice Chair
February 2, 2023
Between
Luke Odongo Oloo
1st Applicant
Rose Achieng
2nd Applicant
and
Ramadhan Mwinyi
Respondent
Ruling
1. The Tenant/Applicant herein has moved this Tribunal by a motion dated September 23, 2022 in which he is seeking that the Tribunal be pleased to stay, review and/or suspend the enforcement and/or execution of the ruling delivered on September 21, 2022 and all consequential process as arising therefrom.
2. According to the Applicant, this Tribunal’s ruling of September 21, 2022 aggrieved him as the same did not address or overlooked two issues given that the suit premises was a temporary structure built on a road reserve and vacant possession could not issue as the only notice served by the landlord was one dated July 6, 2021 which was not in the prescribed form.
3. The Applicant contends that he was not a tenant to the landlord herein as there was no proof of payment of rent since the Landlord changed sold and surrendered the suit premises to the Applicant’s wife one Chebet Yasmin in October 2021 and could not be paid rent thereafter.
4. Although I have not seen the replying affidavit or any other response to the application before me, I am nevertheless required to exercise my discretion judicially and not capriciously taking into consideration the principles considered in an application for review of court orders.
5. In the case ofNational Bank of Kenya Limited vs Ndungu Njau (1997) eKLR, the Court of Appeal had the following to state:-“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review”.
6. All issues raised in the applicant’s motion were addressed in the ruling of September 21, 2022 and cannot be grounds for review as entertaining them would amount to sitting on appeal against my own decision. This is against the spirit of review espoused in the foregoing court of appeal decision which is binding upon this Tribunal. I refuse the invitation to sit on appeal against my own decision.
7. In the premises, the application dated September 23, 2022 is hereby dismissed with no orders as to costs.
It is so ordered.
RULING DATED, SIGNED & VIRTUALLY DELIVERED THIS 2ND DAY OF FEBRUARY 2023. HON. GAKUHI CHEGEVICE CHAIRBusiness Premises Rent TribunalRuling delivered in the presence of:Tenant present through wife Yasmin Chebet.No appearance for the Landlord.