[2021] KEBPRT 126 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 631 OF 2020 (NAIROBI)

RAPHAEL MBOGO..............................................................APPLICANT/TENANT

VERSUS

OAKRIDGE INVESTMENT LIMITED..................RESPONDENT/LANDLORD

RULING

1. By a motion dated 28th June 2021, the Landlord/Applicant is seeking for setting aside of the orders of 18th May 2021 allowing the instant case to proceed ex-parte to hearing pursuant to which the Tenant testified with both cases being ordered closed.

2. The application is supported by the affidavit of Michael Kimani Horeria advocate of the Landlord sworn on 28th June 2021 wherein it is deposed that the delay in filing replies to the tenant’s reference was occasioned by the fact that bank statements were lengthy and dated back to 3 years. As such the landlord took a lot of time in doing reconciliations.

3. It is admitted that the hearing notice was served on 8th April 2021 and that the hearing date was erroneously diarized as a client meeting unintentionally.

4. Upon attending court on the 28th May 2021, it came to the attention of the landlord’s counsel that the matter was not listed and after checking into the Judiciary e-filing site, it became apparent that there was a mix-up of the dates.

5. It is the Landlord’s case that the same was not intentional and the mistake was excusable. The advocate has annexed a copy of the diary for the said date as annexture “MKH-1”.

6. It is the Landlord’s case that the Tenant/Respondent will not suffer any prejudice if the application is granted.

7. The application is opposed through a replying affidavit sworn by the Tenant/Respondent on 27th July 2021 wherein it is deposed that the Landlord/Applicant was not ready to proceed on 11th March 2021, 7th April 2021 and 18th May 2021 as it had not filed its documents.

8. It is deposed that a copy of the Landlord’s advocates diary for 18th May 2021 has not been provided and that there were emails exchanged in reference to the said date.

9. According to the Tenant, the Landlord has not demonstrated that failure to attend the Tribunal was due to inadvertent mistake in diarizing the date.

10. It is the Tenant’s case that the Landlord was never ready to proceed in view of failure to file documents to be relied upon during the hearing. No documents are annexed to the application despite over 4 months period having lapsed since the time of seeking leave to do so.

11. The Landlord having been given a chance to file documents on 11th March 2021 and 7th April 2021 but choosing not to comply has no justification for the failure to do so.

12. Despite noting that the matter had proceeded ex-parte, the Landlord is accused of a further delay of one month before filing the instant application. According to the tenant, this depicts a litigant not interested in having a day in court.

13. The Tenant deposes that he stands to suffer prejudice if the case is reopened as this will lead to delay in conclusion thereof.

14. The matter was directed to be disposed of by way of written submissions and only the Tenant’s counsel complied.

I am required to determine the following issues:-

(a) Whether the landlord is entitled to the orders sought in the application.

(b) Who is liable to pay costs of the application?

15. I have looked at the pleadings as well as the submissions by the tenant’s counsel and it is clear that the Landlord’s advocates were duly informed of the hearing date of 18th May 2021.

16. Neither the said advocates nor the Landlord appeared on the said date. The landlord’s advocate deposes that failure to attend court was occasioned by a mistake in diarizing the hearing date which was inadvertent. The copy of diary for that date has not been exhibited.

17. Although the landlord is also seeking leave to be allowed to file documents out of time, no such documents are annexed to the application as a show of readiness to defend the matter.

18. The landlord has been granted several opportunities in the past to comply with procedural legal requirements in vain. This depicts a litigant who has no regard to the rules of procedure.

19. In the case of Charles Wanjohi Wathuku – vs- Githinji Ngure & Another (2016) eKLR,the court of Appeal at paragraph 15 and 16 had the following to state:-

“15. This court has stated before as follows:-

It is not enough simply to accuse the Advocate of failure to inform as if there is no duty on the client to pursue his matter. If the Advocate was simply guilty of inaction that is not excusable mistake which the court may consider with some sympathy” (see Rajesh Rughani – vs- Fifly Investment Ltd & Another (2005) eKLR”.

16. Also in the case of Bains Construction Co. Ltd -vs- John Mzare Ogowe (2011) eKLR, the court observed:-

“it is to some extent true to say mistakes of counsel as in the present case should not be visited upon a party but it is equally true when counsel as agent is vested with authority to perform some duties and does not perform it, surely such principal should bear the consequences”.

20. Citing the dicta of Kiage J. in the case Zacharia Okoth Obado – vs- Edward Akongo Oyugi & 2 others (2014) e KLR, the Supreme court had the following to state:-

“17………………….

I am not in the least persuaded that Article 159 of the Constitution and the Oxygen Principles which both command Courts to seek to do substantial justice in an efficient, proportionate and cost effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for all in the administration of justice. This court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even handed. Courts cannot aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application is concerned”.

21. In view of the foregoing decisions, I am required to exercise my discretion in setting aside the orders of 18th may 2021 judiciously rather than capriciously.

22. I am not convinced that there is a good explanation for the Landlord’s failure to comply with the requirement of procedure to file its documents and to attend court for hearing on 18th May 2021.

23. In the circumstances, I proceed to dismiss the application dated 28th June 2021 in its entirety with costs.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 5TH DAY OF NOVEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Ngethe holding brief Mwaniki for Tenant/Respondent

No appearance for the Applicant