[2020] KEBPRT 64 (KLR)
The Tribunal found that there were no substantive orders made on 18th December 2018 and 28th November 2018 in BPRT 350/2015 capable of being set aside. The Tribunal held that the Landlord's application was misconceived, as any grievances regarding orders in BPRT 1001 of 2018 should be addressed in that file. The...
Source-derived case information.
- Citation
- [2020] KEBPRT 64 (KLR)
- Parties
- Applicant: Prince Kinyua Gathuita t/a Talcom Communication; Respondent: Gatakaini Investment Limited
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 350 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Stay and Setting Aside Orders
- Outcome
- application dismissed with costs to the tenant; directions issued for further conduct of the reference
- Legal Topics
- Rent Assessment, Interlocutory Applications, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prince Kinyua Gathuita t/a Talcom Communication
Applicant
Gatakaini Investment Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Stay and Setting Aside Orders
Legal Issues
- 1 Whether there are substantive orders made by the Tribunal on 18th December 2018 and 28th November 2018 capable of being set aside.
- 2 Whether the Landlord's application dated 11th February 2019 has merit and should be granted.
- 3 Whether the Tenant is entitled to costs for the application.
Ratio Decidendi
The Tribunal found that there were no substantive orders made on 18th December 2018 and 28th November 2018 in BPRT 350/2015 capable of being set aside. The Tribunal held that the Landlord's application was misconceived, as any grievances regarding orders in BPRT 1001 of 2018 should be addressed in that file. The Tribunal further noted that the delay in the matter was due to the Landlord's advocates' failure to appreciate the real issue in dispute. Consequently, the application was dismissed with costs to the Tenant, and directions were given to expedite the hearing of the reference, including recalling the Tenant's valuer for cross-examination and allowing the Landlord to call its own...
Court Disposition
application dismissed with costs to the tenant; directions issued for further conduct of the reference
Orders
- The Landlord's application dated 11th February 2019 is dismissed with costs of KES 25,000 to the Tenant.
- The Tenant shall deduct the costs from the rent due to the Landlord.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 350 OF 2015 (NAIROBI)
PRINCE KINYUA GATHUITA T/A
TALCOM COMMUNICATION..............................................TENANT/APPLICANT
VERSUS
GATAKAINI INVESTMENT LIMITED....................LANDLORD/RESPONDENT
RULING:
The Tenant/Applicant by the notice of motion dated 11th February 2019 is seeking the following substantive orders;
1. Prayer 2:
That pending the interpartes hearing the honourable Tribunal do issue an order of stay against the orders made by the Chairman on 18th December 2018, 28th November 2018 and all other consequential orders included.
2. That the honourable Tribunal do vary, set aside the aforesaid orders and all orders consequential to the same.”
The advocates of the parties have filed written submissions which the Tribunal has read in details. The record of the Tribunal in respect of BPRT 350 of 2015 shows the following;
1. On 27th September 2018, the advocates of the parties by consent fixed the reference for hearing on 20th November 2018.
2. That on 20th November 2018 the advocate for the Landlord was not present and the Tribunal proceeded to take evidence from the valuer of the Tenant.
3. BPRT 350/2015 is dealing with the issue of rent assessment.
4. There are no substantive orders made by the Tribunal on 18th December 2018 and 28th November 2018 in BPRT 350/2015 which are capable of being set aside.
5. If the Landlord is aggrieved with the orders issued in BPRT 1001 of 2018 it should file appropriate application in the said file.
All in all the Tribunal is satisfied that the Landlord’s application in this matter is misconceived. The advocate for the Landlord should have perused the proceedings in BPRT 350/2015 and BPRT 1001 of 2018. This matter has been pending in the Tribunal for a long time because of the failure of the advocates for the Landlord to appreciate the issue in dispute before the Tribunal.
In the interest of justice and to expedite the hearing and disposal of this reference in BPRT 350/2015 the Tribunal makes the following orders;
1. The Landlord’s application dated 11th February 2019 has no merit and the same is hereby dismissed with costs of shs 25,000 to the Tenant.
2. The Tenant shall deduct the costs from the rent due to the Landlord.
3. The orders of the Tribunal issued on 20th November 2018 are varied by the Tribunal on its own motion in the following manner.
a. The Tenant shall recall the valuer Sylvester Ndungu Njonde for cross-examination by the Advocate for the Landlord.
b. The Landlord shall call its valuer to give evidence before the Tribunal.
c. The parties shall fix the hearing date of the reference within 30 days from the date of delivery of this ruling.
Ruling dated and delivered this 26thday of May 2020 in the presence of Mr Kamau holding brief for Agina for the Landlord. Tenant’s advocate absent.
MBICHI MBOROKI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL