[2021] KEBPRT 294 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 826 OF 2012 (NAIROBI)

TANGA AUTO (K) LIMITED

DANTESH AUTO SPARES (K) LTD......................................TENANTS/APPLICANTS

VERSUS

MARY NYOKABI GAKURU........................................................................LANDLORD

RULING

1. The Landlord’s notice of preliminary objection dated 20th June 2020 is in the following terms;

a. That this Tribunal does not have the requisite jurisdiction to review its judgement which was delivered on 12th April 2019 and which also happens to have been the subject of the Tenant’s appeal to the Environment and Land Court, Nairobi ELC Appeal No. 44 of 2019 and which appeal was dismissed by that court on 13th February 2020.

b. That the Tenant’s application herein is therefore frivolous, vexatious and an abuse of the court process.

2. Both parties have filed their submissions in support of their respective positions. I proceed to summarize their submissions as follows;

3. The Landlord’s/Respondent’s submissions are to the effect;

a. That the Landlord issued tenancy notices to the Tenants/Applicants seeking to increase rent for each of the two Tenants with effect from 1st November 2012. The Tenants in turn filed references.

b. That once a reference is filed under section 6(1) of the Act, the Tribunal is required to render a judgement under section 9 of the Act.

c. That the application by the Tenants does not seek to vary a mere order but rather the essence and the substance of its judgement.

d. That the application does not seek to correct a mere error on the face of the judgement but to reconsider the substance of its judgement.

e. That the Tribunal is functus officio and cannot be called upon to revisit the substance of its judgement delivered on 12th April 2019 for the reasons stated in the application.

f. That the Applicants are seeking to be heard afresh with a view to persuading the Tribunal to write a fresh and favourable judgment.

g. That the new issues of fact and law discovered by the Applicant’s new counsel have not been disclosed.

h. The competency or lack thereof, of the Applicant’s counsel previously on record cannot be a proper basis for seeking to be heard afresh.

i. The ELC Appeal No. 44 of 2019 being the Applicant’s appeal against the Tribunal’s judgement of 12th April 2019 was dismissed a fact not disputed by the Applicants.

j. That it is the dismissal of the said appeal that prompted the filing of the present application.

k. That the Tribunal therefore lacks jurisdiction to revisit the judgement.

4. The Tenant’s/Applicant’s submissions may be summarized as follows;

a. That the Applicants seek to have the entire judgement of the Tribunal delivered on 12th April 2019 set aside varied and/or reviewed.

b.That the application is brought within the framework of Section 80 and Order 45 Rule 1 of the Civil Procedure Rules 2010 and section 12(i) (i) of Cap 301.

c. That on the strength of various authorities cited by the counsel for the Applicants, the tribunal has jurisdiction to review its own judgements in the interests of justice.

d. That the constitution guarantees every person the right to a fair hearing under Article 50 thereof.

e. The Applicants in the instant application did not get an opportunity to adduce all the evidence necessary to support their case due to inevitable circumstances.

f. That the Applicants have since discovered new and important evidence not available to them when the matter was filed which evidence should lead the Tribunal to a new decision.

g. That the Tribunal is implored to re-evaluate the new evidence pertaining to the apparent errors of law on the face of the judgement.

h. That the judgement offends Section 6 of Cap 301 on the validity of notices to increase rent and the time from which it should be assessed.

i. The Tribunal erred in failing to call for independent assessment of the rent payable on its own motion.

j. That the Tribunal ordered payment of rent that is higher than what the Landlord had submitted for.

k. That the Tribunal ought to enlarge time within which to apply for orders of review.

l. That the Applicants did not provide evidence to properly guide the Tribunal due to the mistakes of the advocates then on record for them; and the judgement and orders were therefore issued based on an error apparent on the face of the record.

m. That the Applicants ought to be allowed to adduce the additional evidence to enable a just determination of the matter and probably reach a different outcome.

n. That all the Applicants are asking is that the honourable Tribunal do send a site assessor to assess the material buildings before determining the amount of rent payable.

5. The issues for determination that arise in view of the application, the preliminary objection and the parties’ submissions, are in my view the following;

a. Whether the Applicants have been aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or;

b. Whether the Applicants are aggrieved by a decree or order from which an appeal is hereby allowed and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was issued or the order made or on account of some mistake or error apparent on the face of the record of or any other sufficient reason.

c. Whether in the circumstances of this case, the Tribunal has jurisdiction to revisit its judgement delivered on 12th April 2019.

6. On Issue No. (a)

a.It is common ground that the Landlord herein issued notices to increase rent to the Applicants herein. The said notices were to take effect on 1st November 2012.

b. It is further agreed that the Tenants/Applicants herein filed references in opposition to the notices to increase rent.

c. It is further a fact that the Tribunal heard the references and delivered a judgement on the matter on 12th April 2019.

d. Under Section 15(1) of Cap 301, it is provided as follows;

“Any party to a reference aggrieved by any determination or order of a Tribunal made therein may within thirty days after the date of such determination or order appeal to the High Court.”

It is therefore clear that the Applicants had a right to appeal and indeed did appeal against the judgement of the Tribunal delivered on 12th April 2019.

e. The relief by way of review is therefore not available to the Applicants where the Applicants have chosen to appeal under Order 45 Rule 1 of the Civil Procedure Rules. This Rule applies where no appeal has been preferred.

7. On Issue No. (b)

a. The Applicants herein filed an appeal against the judgement of the Tribunal delivered on 12th April 2019. The Applicants in their submissions indicate that the appeal preferred was Nairobi ELC Appeal No. 44 of 2019 and that the same was dismissed on 13th February 2020.

b. I have perused the judgement of the Tribunal in this matter and do note the following;

1) That the Landlord filed his valuation report prepared by Rubyland Ltd.

2) That the Applicants filed their valuation reports prepared by Interlink Real Estate Ltd.

3) That counsel for the respective parties recorded a consent on the lettable areas.

4) That counsel were to file their respective submissions.

5) That the Court made its judgment based on the consideration of the valuation reports and the submissions of the counsel for the Landlord as counsel for the Tenant had not filed his submissions.

It is therefore clear that all the parties were granted an opportunity to be heard and they did indeed participate in the proceedings.

c. I have also carefully read the submissions of the Applicants. The submissions and the affidavit evidence do not disclose any new and important matter or evidence which was not within the Applicant’s knowledge at the time of the hearing.

d. I have also carefully read the judgement of the Tribunal and I cannot for myself see any error apparent on the face of the record.

e. The Applicant’s contention that they did not have the opportunity to adduce all the evidence they wished to rely on is not supported by any evidence from the record. The circumstances leading to this lack of opportunity to adduce evidence have not been demonstrated.

f. The Applicants’ contention that the judgement offends the provisions of section 6 of Cap 301 is a matter that ought to be taken on appeal and not review as it challenges the finding of the Court/Tribunal on a substantial matter.

g. In answer to this issue, I therefore find that the Applicants have not demonstrated the discovery of any new, important matter or evidence that would entitle them to the relief of review orders.

8. On Issue No (c);

a. The Applicants, as stated earlier, filed an appeal which was dismissed. They have now come back to the Tribunal seeking orders of review of the Tribunal’s judgement by having the same varied and/or set aside. This would result in a fresh hearing of the case and the writing of another judgement.

b. I agree with the counsel for the Landlord that once this Tribunal delivered its judgement on 12th April 2019, it became fanctus officio.

c. The Applicants had a right of appeal and which they exercised. I have already found that there exists no new matter of importance or new evidence to warrant the issuance of review orders. In those circumstances a variation of the orders would amount to sitting on appeal on a decision of the Tribunal, a jurisdiction I clearly do not have.

9. In conclusion, I do agree with the Landlord that the Tribunal does not have the requisite jurisdiction to review its judgement delivered on 12th April 2019 and even if I were wrong on the issue of jurisdiction, I would still have dismissed the Applicant’s application dated 22nd May 2020 for the reasons given in paragraphs 6, 7 and 8 above with costs to the Landlord.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 31stday of August 2021 in the presence of Mr Kang’ata for the Landlord and in the absence of the Tenantand his advocates.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL