[2021] KEBPRT 364 (KLR)
The Tribunal found that the applicant, having obtained ex parte interim orders, failed to attend court to prosecute its application despite being duly served with a hearing notice. This conduct demonstrated a lack of interest in pursuing the application. The Tribunal exercised its discretion to dismiss the...
Source-derived case information.
- Citation
- [2021] KEBPRT 364 (KLR)
- Parties
- Applicant: Subroutech Autogarage Limited; Respondent: Hanifa Ghalib Abdulkarim (sued on her behalf and as a legal representative of the estate of Ghalib Abdulkarim)
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 74 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Interim Orders and Reference
- Outcome
- application dismissed for non-attendance with costs to respondent
- Legal Topics
- Business Premises Rent, Tenant Landlord Dispute, Interim Orders, Dismissal for Non Attendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Subroutech Autogarage Limited
Applicant
Hanifa Ghalib Abdulkarim (sued on her behalf and as a legal representative of the estate of Ghalib Abdulkarim)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Interim Orders and Reference
Legal Issues
- 1 Whether the application dated 16/3/2021 should be heard in the absence of the applicant.
- 2 Whether the ex parte interim orders should be sustained in light of the applicant's non-attendance.
- 3 Whether the application should be dismissed for want of prosecution.
Ratio Decidendi
The Tribunal found that the applicant, having obtained ex parte interim orders, failed to attend court to prosecute its application despite being duly served with a hearing notice. This conduct demonstrated a lack of interest in pursuing the application. The Tribunal exercised its discretion to dismiss the application dated 16/3/2021 for non-attendance and awarded costs to the respondent. The decision underscores the principle that litigants must actively prosecute their cases and that interim orders obtained ex parte do not entitle a party to avoid further participation in proceedings. The Tribunal's powers to dismiss for want of prosecution and to award costs were properly invoked in...
Court Disposition
application dismissed for non-attendance with costs to respondent
Orders
- The application dated 16/3/2021 is dismissed for non-attendance.
- The applicant shall pay costs of Kshs.20,000 to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 74 OF 2021 (MOMBASA)
SUBROUTECH AUTOGARAGE LIMITED......…..…TENANT/APPLICANT
VERSUS
HANIFA GHALIB ABDULKARIM (sued on her behalf and as a legal representative of the estate of Ghalib Abdulkarim)………………………………………..LANDLORD/RESPONDENT
RULING
The Applicant herein filed a Reference dated 16/3/2021 together with an application dated the same date.
Exparte conservatory orders were granted to the applicant on the 17/3/2021 with an interpartes date given.
On the 30/4/2021 the Respondent’s advocate attended and requested for time to file proper responses to the application and Reference.
When the matter came up for hearing interpartes on the 13/5/2021 only the advocate for the Respondent was present.
The Respondent filed an affidavit of service dated 3/5/2021 deponed by one Rehema Salim and annexed a properly received hearing notice. The hearing notice had been served on the 30th April, 2021 and bear the stamp of the Applicant’s advocates on the face.
The Respondent’s filed a Replying affidavit and a notice of preliminary objection in opposition of the application dated 16/3/2021.
I shall not dwell on the issues brought to fore by the application and the responses thereto, considering the fact that the applicant did not appear before me to canvass the application albeit being duly served with the day’s date.
The absence of the Applicant only shows lack of interest in the application after getting interim orders exparte and I am inclined to dismiss the application dated 16/3/2021 with costs of Kshs.20,000/- to the Respondent for non attendance.
It is so ordered.
Dated, Signed and delivered this 29th day of July, 2021.
HON. P. MAY
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
29/7/2021
No appearance for the parties