[2022] KEBPRT 842 (KLR)

Sitati v Chelekesi (Tribunal Case 43 of 2021) [2022] KEBPRT 842 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEBPRT 842 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 43 of 2021

Gakuhi Chege, Vice Chair

October 7, 2022

Between

Erick Wafula Sitati

Applicant

and

Kennedy Waliaula Chelekesi

Respondent

Ruling

1. By a motion dated July 4, 2022, the tenant moved this tribunal seeking for review of its order dated June 10, 2022 and setting aside of its subsequent orders to allow the court an opportunity to look into the fact that there was an error on the face of the record and that new evidence had emerged that was not presented at the hearing that shows that the land parcel Bokoli/Chwele/1903 belongs to one John Ngutu Watila which raised a red flag that the certificate of official search presented by the respondent was a forgery. As such the case ought to be heard afresh.

2. The application is supported by the affidavit of the tenant sworn on July 4, 2022 which exhibits annexure ‘EWW-3’ showing that the land parcel was owned by one John Ngutu Watila and not Kennedy Waliaula Cherekesi. The said search certificate is dated June 9, 2022 while the impugned judgment was delivered on June 10, 2022.

3. The tenant deposes that the respondent engaged in illegality of forging a search certificate for the land parcel to mislead the court that he was the owner recognized by law when he knew that the same belonged to John Ngutu Watila.

4. According to the applicant, there was an apparent error on the face of record and that new evidence has emerged that the respondent misled the court by relying on a forged land certificate. The new evidence will assist the court to make a decision on the case on correct evidence and merit.

5. Although there is evidence that the respondent was served with the application on July 18, 2022 as per the affidavit of service of one Joseph Wanyonyi Kundu and a hearing notice for August 16, 2022 as per the affidavit of Moses Kuloba Keya, he did not respond nor attend court.

6. However, despite the application being unopposed, this tribunal is duty bound to examine it against the applicable law more so on the principles on considered in applications for review.

7. In the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, the court of appeal at page 4/5 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 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”.

8. At paragraph 22 of my judgment, I observed as follows:-“It is clear that the tenant entered into the suit premises with the consent of the landlord and while there, he decided to stake a claim of ownership of a portion thereof claiming that the latter occupied and developed a bigger portion of his father’s land than what he bought. I doubt that he has capacity to do so but since my duty is to determine existence or otherwise of a landlord/tenant relationship, I will stick to that”.

9. It is important to note that this tribunal has no jurisdiction to determine issues of title to land and the issue now being raised by the tenant is clearly not within the purview of this tribunal’s powers under cap 301, Laws of Kenya. I was alive to that fact when I held that I will stick to the question of whether there was a landlord/tenant relationship between the parties herein. I answered the issue in the affirmative and any dispute over title therefore is supposed to be litigated elsewhere.

10. This tribunal while relying on section 121 of the Evidence Act, cap 80 Laws of Kenya at paragraphs 24 and 25 of the judgment held that it was not in dispute that the tenant was put into possession of the suit premises by the landlord and was thus estopped from denying his title. It was therefore held that the landlord had established a controlled tenancy between him and the tenant herein.

11. It is imperative to note that ownership is not one of the factors considered in establishing a landlord/tenant relationship by this tribunal as such a relationship can be created even where the landlord is a tenant who sublets to a subtenant without claiming ownership rights over a demised premises. The argument by the tenant that the landlord herein is not the owner of the suit premises or that he used a forged certificate of title/certificate of official search is not an issue for determination by this tribunal. It should be litigated elsewhere.

12. In any event, the tenant claims that the land parcel where the suit premises is erected is owned by one John Ngutu Watila who is not a party to this suit and who was neither called as a witness during the hearing of the case neither has he sworn an affidavit claiming that he is the true landlord of the tenant herein. There is no dispute that the recognized landlord all along has been the respondent until sometimes in the year 2019 around June when the tenant stopped paying rent. That is all this tribunal was supposed to consider.

13. In the premises, I am not satisfied that the tenant’s application meets the legal threshold for review of the judgment delivered herein on June 10, 2022. The application is clearly a candidate for dismissal.

14. As the respondent did not respond to the application nor attend court, I shall not award any costs to him in exercise of my discretion under section 12(1)(K) of cap 301, Laws of Kenya.

15. In conclusion, the final orders which commend to me are:-(i) The tenant’s application dated July 4, 2022 is hereby dismissed.(ii) There shall be no orders as to costs thereof.

16. It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 7TH DAY OF OCTOBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Nabibia for the TenantNo appearance by the Landlord.2