[2021] KEBPRT 36 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E011 OF 2021 (ELDORET)

REUBEN SIMIYU SAMUEL....................................................TENANT

VERSUS

JOSEPH MAERO OYULA..................................................LANDLORD

ABDUL KADIR ADAN.............SUB-TENANT/INTERESTED PARTY

RULING

1. By a motion dated 30th August 2021, the landlord is seeking for setting aside of the ex-parte orders given on 26th August 2021. He further seeks for leave to defend the reference together with costs of the application.

2. The application is supported by the landlord’s affidavit sworn on 2nd September 2021. The main contention by the landlord is that the reference and application by the tenant was never served upon him as required by law.

3. It is the contention of the landlord that the reference and application were dropped at the firm of Ndinya Omollo and company Advocates who had no instructions to receive them on his behalf.

4. According to the application and the accompanying order the matter was scheduled for hearing on 28th August 2021. By the time the firm of Ndinya Omollo & Co. Advocates got in touch with the landlord, the matter had been heard and orders granted ex-parte by the tribunal on 26th August 2021.

5. It is the landlord’s case that he has a good defence to the tenant’s claim but was condemned unheard contrary to the rules of natural justice and it was in the interest of justice and fairness to grant him an opportunity of being heard.

6. The landlord deposes that on 25th August 2021, he received information from his advocates that an order and some documents were dropped at their offices in respect of this matter indicating a hearing date of 28th August 2021 which was a Saturday.

7. Upon perusal of the Tribunal record, the advocates realized that the matter came up on 26th August 2021 and ex-parte orders were granted.

8. The landlord denies the contents of the affidavit of service of one Kenneth O. Oduor (process server) wherein it is deposed that he located him at Pioneer Estate in Uasin Gishu County and served him with the amended order together with the application dated 9th August 2021 on 13th August 2021 in the office of Ndinya Omollo & Co. Advocates at about 11. 20a.m.

9. He denies having been served with any application or any other documents in relation to this matter. He contends that he has a good defence to the tenant’s claim as demonstrated by annexture JNM02.

10. In response, the tenant filed a replying affidavit sworn on 1st November 2021 wherein he deposes that the order sought to be set aside was adopted in Eldoret CMC Misc. Application No. E164 of 2021 on 13th September 2021 in terms of annextures RSS1. As such, the application has been overtaken by events.

11. It is also deposed that upon adoption of the tribunal order, the dispute over the suit premises became res judicata and this court is functus officio.

12. It is the tenant’s case that the landlord and interested party were duly served with all processes in terms of the affidavits of service on record.

13. The tenant deposes that the termination letter subject matter of his reference was illegal, incompetent, fatally defective, null and void as it breached provisions of the landlord and Tenant (shops, Hotels and Catering Establishments) Act Cap. 301, Laws of Kenya.

14. The tenant deposes that the landlord deliberately failed to attend the Tribunal after being served with the court process.

15. The tenant swore a supplementary affidavit on 11th November 2021 annexing several documents including the amended order which indicated the hearing date of 26th August 2021 and affidavit of service sworn on 16th August 2021 by Kenneth O. Oduor (process server) as annextures ‘RSS7’ respectively.

16. It is the tenant’s case that the landlord’s application is an afterthought, lacks merit and has been overtaken by events.

17. I directed that the application be disposed of by way of written submissions but only the landlord complied.

18. I am now called upon to determine the following issues:-

a. Whether the landlord is entitled to the reliefs sought in the application dated 30/8/2021.

b. Who is liable to pay costs of the application?

19. The principles upon which an application for setting aside an ex-parte judgment is considered were long settled in the locus classicus Case ofShah – vs- Mbogo (1967) EA 116 at page 123 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”.

20. These are the principles that I am going to apply in this case in order to determine whether to grant or deny the application.

21. The main contention by the landlord is that he was not served with the application and that the documents served upon his advocates indicated that the case was scheduled for hearing on 28th August 2021.

22. The affidavit of service marked ‘RSS8’ by one Kenneth O. Oduor indicates that the amended order and application showing that the case was coming upon on 26th August 2021 was served upon the landlord at the offices of Ndinya Omollo & Co. Advocates, Pioneer estate on 13th August 2021 at about 11. 20 a.m.

23. The landlord denies ever being served with court process in this case and maintains that he came to learn about it from his said advocates. No affidavit has been sworn by his said advocates to corroborate the landlord’s position and there was no application to summon the process server for cross-examination in respect of his affidavit of service.

24. It is curious to note that the said advocates are the ones on record for the landlord in this case and one wonders how the process server came to know that they were the advocates of the landlord. It cannot be a coincidence and I tend to believe the process server that the landlord was served at his advocates office.

25. In the case of Secretary and Another -vs- Lucia Ndinda Musyoka T/a Jocia Stores (2019) eKLR, the superior court at paragraph 22 cited with approval the treatise, ‘The code of Civil Procedure’ vol.11 page 1670 by Chitaley and Annaj Rao as follows:-

“There is a presumption of service as stated in the process server’s report and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server is put in the witness box and opportunity of cross examination given to those who deny service”.

26. Section 109 of the Evidence Act, Cap. 80 provides as follows:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person”.

27. In this mater, the landlord was unable to dislodge the process server’s affidavit of service as required or to bring himself within the principles of setting aside the ex-parte orders herein.

28. Order 10 Rule 2 of the Civil Procedure Rules, 2010 provides as follows:-

“Where any defendant fails to appear and the plaintiff wishes to proceed against such defendant, he shall file an affidavit of service of the summons unless the summons has been served by a process server appointed by the court”.

29. Although the landlord complains that he was denied a hearing, the tenant had filed the requisite affidavit of service and this Tribunal was satisfied that service was proper. The orders emanating from the ex-parte hearing are therefore regular.

30. It has been submitted by the tenant that the order was adopted under section 14 of Cap. 301 by the subordinate court in Eldoret CMC Misc. application no. E164 of 2021. Upon such adoption, I agree that this Tribunal became functus officio and cannot set aside the order.

31. Section 14 of Cap. 301 stipulates that upon filing of determination in the subordinate court and notice thereof being served upon the Tribunal by the party filing the same, such determination or order may subject to any right of appeal conferred under the Act be enforced as a decree of the court.

32. In the premises all the other issues raised by the landlord cannot be addressed by this Tribunal.

33. In the premises, the following orders commend to me in this matter:-

a. The application dated 30th August 2021 is hereby dismissed with costs to the tenant.

b. The tenant’s costs are assessed at Kshs.10,000/- against the landlord.

c. The said costs shall be defrayed against the rent account.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 29TH DAY OF DECEMBER, 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Chemutai for the landlord

Mugambi for the Tenant