[2022] KEBPRT 799 (KLR)

Patos Trading Company Limited v Light International School (Tribunal Case 945 of 2020) [2022] KEBPRT 799 (KLR) (Civ) (26 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 799 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 945 of 2020

Gakuhi Chege, Vice Chair

October 26, 2022

Between

Patos Trading Company Limited

Applicant

and

Light International School

Respondent

Ruling

1. On 17th December 2021, this Tribunal rendered a judgment in this matter in the following terms:-a.“The rent payable by the tenant in respect of the suit premises being the canteen within Light International School is Kshs.40,000/- per month excluding school holidays and government closures.b.The said rent shall apply from 8th November 2016 when the tenant took possession.c.The amount of Kshs.700,000/- paid as advance rent shall be applied towards defraying part of arrears that have accrued in respect of the suit premises todate.d.Each party shall bear own costs of the suit”.

2. By a motion dated 9th March 2022, the tenant moved this Tribunal seeking review of the judgment by substituting the date of 8th November 2016 with 1st September 2018 as the date on which the tenant took possession.

3. According to the tenant, the Tribunal erred in fact in entering the date which the tenant took possession erroneously in the Judgment. It is the Tenant’s contention that the new canteen begun operating from 1st September 2018 when the Cambridge system of education calendar started.

4. It is deposed that the tenant paid Kshs.700,000/- that was to go towards construction and a sum of Kshs.25,000/- was to be deducted monthly from June 2017 and upon depletion, the tenant was to continue paying Kshs.25,000/- as monthly rent.

5. The tenant states that it was granted possession of the new canteen on 1st September 2018 when schools opened and the Tribunal misinterpreted the date of possession.

6. The application is opposed through the replying affidavit of Zekeriya Sener Ozsahin sworn on 11th August 2022 wherein it is deposed that it does not disclose any error apparent on the face of the record but challenges the court’s assessment of evidence.

7. According to the landlord, the judgment issued on 17th December 2021 is correct in fixing the monthly rent payable at Kshs.40,000/- per month with effect from 8th November 2016. As such, the grounds advanced by the tenant are not for review but appeal as the Tribunal pronounced itself on the issue of rent and granting the prayer would amount to sitting on appeal over its own decision.

8. The delay of three months in filing the application according to the Respondent is not explained. The application lacks merit and is attacked as an abuse of court process.

9. The tenant is accused of failure to pay rent to the landlord in compliance with the judgment and was in arrears of Kshs.1. 9 million as at July 2022.

10. The tenant is accused of failure to pay electricity and water bills in the sum of Kshs.635,000/-. This was causing the landlord loss of revenue and its tenancy ought to be terminated on account of substantial breaches under the tenancy.

11. In the pendency of the application dated 9th March 2022, the tenant filed yet another application dated 25th March 2022 seeking inter-alia for orders that the landlord be restrained from demanding non-existent rent arrears and that it be restrained from interfering with lawful enjoyment of the suit premises by the Tenant and the notice of termination of tenancy dated 25th March 2022 be struck off.

12. On the issue other hand, the landlord filed an application dated 25th March 2022 seeking for an order that the tenant delivers vacant possession of the suit premises to wit L.R. No.27342 being the school canteen back to the landlord.

13. The landlord’s application is predicated upon a notice to terminate tenancy marked “ZK-5”. The landlord further seeks to be allowed to disconnect electricity and water supply to the suit premises on account of arrears of utility bills amounting to Kshs.635,500/- as per annexure ‘ZK-1’.

14. The landlord’s application is opposed through the tenant’s replying affidavit sworn on 20th April 2022 wherein it is denied that the tenant owes Kshs.635,500/- in unpaid utility bills and Kshs.1,715,000/- in rent arrears. The tenant explains the historical background of its relationship with the landlord which I need not rehash in this ruling in view of what I intend to decide on the application.

15. On 5th August 2022, this Tribunal directed that the three applications be canvassed by way of written submissions which directions were complied with by both parties. I intend to consider the submissions together with the issues for determination set out hereunder.

16. Based on the parties’ pleadings, the following issues arise for determination:-a.Whether the tenant is entitled to the reliefs sought in the application dated 9th March 2022. b.Whether the tenant is entitled to the reliefs sought in the application dated 25th March 2022. c.Whether the landlord is entitled to the reliefs sought in the application dated 25th March 2022. d.Who is liable to pay costs of the applications?

17. As observed above, judgment in this matter was delivered on 17th December 2021 and none of the parties appear to have preferred an appeal against it. The application by the tenant seeking review of the judgment came three months after the said judgment.

18. In its submissions, the tenant cites the provisions of order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, Cap. 21 in support of the application for review. It further cites the court of appeal decision in the case of Otieno, Ragot & Co. Advocates – vs- National Bank of Kenya Limited (2020) eKLR where it was held as follows:-“The main grounds for review are therefore, discovery of new and important matter of evidence, mistake or error apparent on the face of the record or for any other sufficient reason and most importantly, the application has to be made without unreasonable delay”.

19. The tenant reiterates that there were mistakes and/or errors on the face of record on the date of 8th November 2016 as the date when the canteen was handed over to the tenant instead of 1st September 2018.

20. The tenant cites paragraphs 14 of the judgment wherein the Tribunal held as follows:-“In the premises, I shall use my discretion to fix the monthly rent payable at Kshs.40,000/- per month with effect from 8th November 2016 when the new canteen was handed over by the landlord’s head teacher as per documents on record”.

21. I have looked at the court record and in particular a letter dated 8th November 2016 attached to the affidavit of the tenant sworn on 27th May 2019 as annexure ‘ENC-1’ written by the landlord which states as follows:-“Dear Sir/MadamRE: School CanteenThis serves to certify that Mr. Cheptarus Chemilil Musa and Mrs. Emily Njoki Chemilil will be officially running the school canteen as from 8th November 2016. Yours Faithfully,Mr. Ramazan AkkilieHead Teacher”

22. The tenant has not exhibited any other document to contradict the said letter in its assertion that it took up possession on 1st September 2018 and not 8th November 2016 as contained in the said letter which guided the Tribunal’s judgment.

23. On basis of the foregoing, I am not convinced that there is any error apparent on the face of record that requires to be corrected by way of review. I agree with the decision in the case of Peter Keen Kiboi – vs- Terence Naibei Lubusi(2020) eKLR wherein the court of appeal held as follows:-“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 of review that the court proceeded on an incorrect exposition of the law”.

24. Guided by the said decision, I find and hold that the tenant has miserably failed to bring itself within the principles espoused therein and as such the application is a candidate for dismissal.

25. As to whether the tenant is entitled to the reliefs sought in the application dated 25th March 2022, I hasten to observe that there is already a judgment in this case and the only way to reopen the matter legally was by way of a review application which has failed. Having rendered its judgement on the issues presented by the parties herein, this Tribunal became functus officio and cannot re-engage on every new issue that arise between the parties.

26. In the case of Telkom Kenya Limited – vs- John Ochwanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited (2014) eKLR the court of appeal cited the Supreme court of Kenya decision in Raila – vs- IEBC as follows:-“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may as a general rule exercise those powers only once in relation to the same matter. The principle is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker”.

27. Citing Jersey Evening Post Ltd – vs-AL Thanai (2002) JLR 542 at 550 which was also cited and applied by the supreme court, the court went on to state as follows:-“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded and the court functus when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review of alter its decision, any challenge to its ruling or adjudication must be taken to a higher court if that right is available”.(see also the case of George Nyakundi Ombaba – vs- Attorney General (2017) eKLR).

28. In the premises, I find and hold that the application dated 25th March 2022 is improperly before this Tribunal and is hereby struck out with the result that all interim orders issued pursuant thereto are also discharged.

29. In regard to the landlord’s application dated 25th March 2022, the same suffers the same fate as the tenant’s application of even date since it was filed in a matter which is already determined. The notice to terminate tenancy ought to be subject matter of different proceedings as it was issued after conclusion of this case.

30. Having decided on the rent payable by the tenant, any execution of the judgment ought to be addressed by the Subordinate Court under section 14(1) of Cap. 301 as this Tribunal does not execute its own judgments.

31. As regards costs, the same are in the Tribunal’s discretion under section 12(1) (K) of Cap. 301, Laws of Kenya. As both the tenant and landlord have failed in their respective applications filed post judgment before this Tribunal, I shall order that each party meets own costs of the three applications.

32. In conclusion, the following final orders commend to me.i.The tenant’s applications dated 9th March 2022 and 25th March 2022 are hereby dismissed/struck out respectively:-ii.The landlord’s application dated 25th March 2022 is hereby struck out.iii.Each party shall meet own costs of their respective applications.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 26TH DAY OF OCTOBER, 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kamau holding brief for Miss Mangla for the LandlordMiss Mati for the TenantFurther Order: The tenant is at liberty to file contempt of court proceedings in the Environment and Land court under section 5 of the Judicature Act on the issues raised in the application dated 15th September 2022. The application is hereby struck out for want of jurisdiction under section 12(2) of Cap. 301, Laws of Kenya.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL26/10/2022