[2022] KEBPRT 1083 (KLR)

Timewise Solutions Limited v Afya Investment Co-operative Society Limited & another (Tribunal Case 904 of 2018) [2022] KEBPRT 1083 (KLR) (20 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 1083 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 904 of 2018

CN Mugambi, Chair

December 20, 2022

Between

Timewise Solutions Limited

Applicant

and

Afya Investment Co-operative Society Limited

1st Respondent

Peter M. Gachie t/a Regent Auctioneers

2nd Respondent

Ruling

1. On 25th August 2022, counsel for the Tenant informed the court, and I quote;“I have received a letter from my clients stating that he surrendered the premises. He is no longer a Tenant and the Court is no longer seized of jurisdiction.”

2. Counsel for the parties could not agree on who was to have the costs of the suit and the Court directed that they file their submissions on only this issue.

The Tenant’s Submissions 3. The Tenant has submitted that it filed the reference dated 12th November 2018 and an application of even date wherein interim orders were issued pending the hearing and determination of the reference. The Tenant further states that the orders issued on 14th November 2018 were still subsisting to the time the Tenant was denied access to the premises.

4. The Tenant further submits that in total defiance of the Court orders the Landlord denied the Tenant access to the premises and to date the Landlord is in custody of the Tenant’s office equipment and machinery. The Landlord has refused to release the goods to the Tenant thus frustrating the instant suit leading to its withdrawal.

5. The Tenant therefore submits it is an abuse of the Court process for the Landlord to disobey court orders and at the same time ask for costs of the suit.

The Landlord’s Submissions 6. The Landlord has submitted that the allegations that it had disobeyed court orders were false.

7. The Landlord has also submitted that section 27 of the Civil Procedure Act provides that costs of any action, cause or other matter are at the discretion of the Court or as Judge shall for good reason otherwise direct. In this regard, the Landlord has placed reliance on the cases of; Cecilia Karuru Nyaga Vs Barclays Bank of Kenya & Another, Samson K.A. Tim Vs D.M. Machage and Pacis Insurance Co Ltd Vs Francis Njeru Njoka.

8. It is further submitted that the rationale behind the rule on costs is to compensate the successful party for the trouble taken in prosecuting or defending the case, although the Court can still in the exercise of its discretion deny a successful party costs.

9. That in demonstrating good reason to deny a successful party costs, the Tribunal has to have regard to inter alia, the conduct of the parties, the subject litigation circumstances which led to the institution of the proceedings, events which led to their termination, steps taken in the proceedings, the stage at which the proceedings were terminated, the manner in which the proceedings were terminated and the relationship between the parties. The Tenant has not provided any cogent evidence of the Landlord’s disobedience of Court orders in this matter.

10. The Landlord submits that it has demonstrated that it complied with the Court orders of 14th November 2018, engaged counsel to defend it in these proceedings at its expense, filed pleadings and various responses and attended the Tribunal whenever this matter came up. The Landlord is in these circumstances entitled to the costs of these proceedings.

Analysis and Determination 11. It is common ground that the Tenant herein filed a reference under section 12(4) of Cap 301 and or application against the Landlord on 12th November 2018. The Tenant’s complaint was that the Landlord had issued a notification of sale of the Tenant’s movable property and had threatened to sell the said property despite the Tenant having paid all the rent required. The Tenant also sought an account of all rent paid to the Respondent/Landlord.

12. On 14th November 2018, the Tribunal issued orders in favour of the Tenant restraining the Landlord from interfering or in any way dealing with the Applicant’s office situated at Afya Centre, Tom Mboya Street, Nairobi.

13. The Landlord in its replying affidavit denied the Tenant’s claims stating that the Tenant owed it rent arrears in the sum of Kshs 315,698 as at the time the Landlord instructed auctioneers to levy distress against the Tenant.

14. It is further not in doubt that the Landlord has vigorously through counsel attended to this matter and filed various pleadings and continuously attended the Tribunal.

15. The dispute between the parties herein had not been resolved as at the time the counsel for the Tenant indicated that the Tenant had vacated the suit premises. The orders the Tenant complaint to have been disobeyed are the ones issued on 14th November 2018. Up to the date (25th August 2022) when the counsel for the Tenant indicated that his client had left the premises, the Tenant had not raised any issue of the disobedience of court orders by the Landlord.

16. It is important to note that the issue of disobedience of court orders and particularly the denial of access into the premises by the Tenant has only been raised in the Tenant’s submissions filed on the issue of costs. Submissions are not evidence.

17. A party cannot introduce evidence via submissions and I do not find any proof by the Tenant to the effect that the Landlord disobeyed the orders issued by the Tribunal on 14th November 2018. In the case of; Erastus Aade Opande Vs Kenya Revenue Authority & Another, Kisumu HCCA No 46 of 2007, the court stated;“Submissions simply concretize and focus on each sides case with a view to win the court’s discretion. That way, submissions ate not evidence on which a case is decided.”

18. It is therefore clear that it is the Tenant who brought this case against the Respondent, the Respondent did not admit any part of the complaint by the Tenant and the Tenant vacated the suit premises before he could ventilate his case. As things stand, the vacation of the suit premises by the Tenant ousted the jurisdiction of the Tribunal, who is then to bear the costs of the suit which has all but collapsed. Section 27 of the Civil Procedure Act provides as follows;“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid and give all the necessary directions for the purposes aforesaid and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers,Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.

19. Does the filing of this suit and the various steps taken by the parties and the eventual vacation of the suit premises by the Tenant thereby collapsing this suit amount to an event? In answering this question, I find guidance in a passage quoted in the Cecilia Karuru Nyaga case (supra) from Justice Kuloba’s Book, Judicial Hints on Civil Procedure, where it is states as follows;“The words the event mean the result of all the proceedings in the litigation. The event is the result of the entire litigation. It is clear however that the word “event” is to be regarded as a collective noun and is to be read distinctively so that in fact it may mean the events of separate issues in an action. Thus, the expression “the costs follow the event” means that the party who on the whole succeeds in the action gets the general costs of the action, but that where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it. An issue in this sense need not go to the whole cause of action but includes any issue which has a direct and definite event in defeating the claim to judgement in the whole or in part.”

20. In my view, the Respondents in this case are the successful party and are entitled to the costs of the suit. I have already stated that the Respondents dutifully attended court by or through counsel and filed their responses. It has not been proved that the Respondents conduct was responsible for the filing of the suit or its withdrawal. It is also clear that it is the Tenant who vacated the suit premises and paralyzed these proceedings. I find no reason to deny the Respondents their costs.

21. In the case of; Republic v Rosemary Wairimu Munene ex-parte Applicant v Ihururu Dairy Farmers Cooperative Society Ltd quoted in the Cecilia Karuru Nyaga case (supra) the court held as follows;“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event… It is well recognized that the principle costs follow the event is not to be used to penalize the losing party, rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”

22. Further in the case of; Pacis Insurance Company Ltd v Francis Njeru Njoka Nairobi High Court, (Commercial and Admiralty Division) Civil Case No 421 of 2010, the court stated;“I have considered arguments by both parties herein. The issue for determination is whether the Defendant is entitled to costs following withdrawal of this suit by the Plaintiff…a party having been caused by the other to participate in a suit, is entitled to the costs incurred in the event the party instructing the suit decide to withdraw it unless parties agree otherwise or court in exercising its discretion decides otherwise after giving the parties opportunity to submit on costs.”

23. I am in agreement with the clear positions advanced by the above authorities and section 27 of the Civil Procedure Act and do find that the Tenant will bear the costs of this suit.

HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 20th day of December, 2022 in the presence of M/S Kamwami for the Landlord and in the absence of the Tenant and counsel.HON. CYPRIAN MUGAMBI NGUTHARICHAIRMANBUSINESS PREMISES RENT TRIBUNAL