Bibiana Nkatha Lichoro t/a John & Pascal Lounge v Peebee Investments Limited [2024] KEBPRT 289 (KLR)

Bibiana Nkatha Lichoro t/a John & Pascal Lounge v Peebee Investments Limited (Tribunal Case E317 of 2023) [2024] KEBPRT 289 (KLR) (29 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 289 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E317 of 2023

P May, Member

January 29, 2024

Between

Bibiana Nkatha Lichoro t/a John & Pascal Lounge

Applicant

and

Peebee Investments Limited

Respondent

Ruling

1. The Tribunal delivered a ruling on 25th August, 2023 in the following terms:a.The tenant’s applications dated 28th March, 2023 and 20th April, 2023 are hereby dismissed.b.The parties to agree and carry out a joint inspection as per clause 4 (C) of the Tenancy agreement.c.The landlord to compute a statement of accounts as per payable rent and serve the same upon the tenant within 3 days from the date hereof. The tenant to settle any outstanding rent arrears within 14 days upon receipt of the updated statement of accounts. In default the landlord shall be at liberty to levy distress without any reference to the Tribunal.d.The landlord is awarded the costs of the applications assessed at Kshs. 80,000. e.The reference dated 28th March, 2023 is settled as per the terms above.

2. The tenant was aggrieved by the actions taken by the landlord after the delivery of the said ruling and therefore sought for orders of review and setting aside of the said ruling vide the application dated 13th September, 2023. The application is premised on the grounds set out on the face of the application and those enumerated in the supporting affidavit sworn by the tenant. The contents of the said supporting affidavit are as summarized below:

3. The tenant averred that the ruling had an error on the face of it as it referred to clause 4 (C) instead of 2 (c) of the lease agreement. It was the tenant’s contention that the landlord jumped the gun by proceeding to levy distress before the joint inspection was undertaken. The tenant stated that they were therefore prejudiced as the deposit and cost of improvement exceed the alleged rent arrears owed thus it was important that the Tribunal guides the process of inspection and set a clear goal for the same.

4. The application has been opposed vehemently through the detailed replying affidavit sworn by Patrick Kyalo Mutiso who identified himself as a director of the respondent. The respondent reiterated that a joint inspection had been undertaken and that the tenant was in rent arrears. The tenant filed a further affidavit to respond to the contents of the replying affidavit. The parties elected to canvass the application by way of written submissions.

5. Having considered the parties’ pleadings, affidavits and submissions and having considered the relevant legal framework, the following are the main issues that fall for determination before this Honourable Tribunal :a.Whether the Tenant has made out a case to justify the review and setting aside of orders issued by this Honourable Tribunal on 25th August, 2023.

6. It is clear that in exercising the powers conferred under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, this Honourable Court must restrict itself to the powers conferred to it under Section 12 of the said Act.

7. Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act clearly stipulates as follows:12. A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—(i)to vary or rescind any order made by the Tribunal under the provisions of this Act.

8. This power of the Tribunal was elaborated by the High Court in the case of; Spares Corner (K) Ltd. Vs Maram Noormohamed, Abdul Hamid Noormohamed,Ismael Noormohamed[2003] eKLR, in which the Tenant sought for review of a decision issued by this Tribunal, after the Tenant had been evicted from the suit property and the Tenancy relationship between the parties severed. The High Court in affirming the power of this Tribunal to vary or rescind its orders as provided under Section 12 (i) of theAct, and in remitting the matter back to the Tribunal for consideration on merit despite the execution of earlier orders stated as follows:“It is difficult to see under what circumstances a Tribunal would be asked to vary or rescind any order made under the Act if it cannot reconsider its own orders dismissing a reference and ordering a tenant’s eviction. The Act provides for it and it is in any event a fundamental principle of Justice.”

9. Based on the foregoing, it is therefore clear that this Honourable Tribunal has the power to review or vary or rescind earlier orders issued by it. Subsequently, this raises the question on what grounds or under what circumstances is this Honourable Tribunal required to consider an application to vary or rescind its earlier orders?

10. In response to the above question, I stand guided by the decision in the case of; Transallied Limited v Sakai Trading Limited [2016] eKLR, where the Environment and Land Court addressed its mind on the grounds that should guide this Tribunal in exercising its review powers as follows:“The appeal before us is against the decision of the tribunal that was made on 1st July 2011 by which the tribunal declined to review its order made on 3rd September 2010 striking out the Appellant’s complaint for want of jurisdiction. What we have been called upon to determine is whether the tribunal acted correctly in rejecting the Appellant’s application for review. Section 12(1) (i) of the Actgives the tribunal power to vary or rescind any of its orders. The Act does not provide for the circumstances under which the tribunal can exercise that power…We are of the view that the provisions of the Civil Procedure Act and the rules made thereunder would apply to the proceedings before the tribunal unless expressly stated otherwise in the Act and the regulations made thereunder which we have referred to above…What we are to determine is whether the Appellant’s application for review before the tribunal met the threshold set out under Order 45 Rule 1(1) of the Civil Procedure Rules.”

11. The grounds in which a Court may exercise its power of review are clearly stated under Order 45 rule 1(1) of the Civil Procedure Rules. The said provision provides as follows:“any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or by a decree or order which no appeal is 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 passed or the order made or on account of some mistake or errors apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree or order may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

12. Therefore, in order for the Tenant herein to succeed in this application, she must satisfy either of the conditions stipulated in Order 45 Rule 1 of the Civil Procedure Rules which are:a)Discovery of a 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 passed or the order made;b)A mistake or error apparent on the face of the record; andc)Any other sufficient reason.

13. In addition to the above grounds, the law further requires that an application for review of orders must be made by the Applicant without unreasonable delay.

14. With this background in mind, I shall proceed to analyse whether the Tenant herein has met the threshold to warrant review of the orders issued by this Honourable Tribunal on 25th August, 2023.

15. At the onset, the parties herein have admitted that the order b of the ruling has a clerical error as it makes reference to clause 4 (c) of the agreement. I have counter-checked the lease and the ruling will be amended to reflect this error.

16. The Tribunal will now turn to the events that happened after the delivery of the impugned ruling. The parties seem to be divided on the proper procedure on which action was to precede the other. The orders of the Tribunal even though were clear have been interpreted by each party to suit their respective positions.

17. The Tribunal is a special creature of statute and in delivering justice has to take cognizance of the commercial interests between the parties that is created by the tenancy relationship. In appreciating this position, it was only logical that the parties complete the joint inspection as ordered before any recovery proceedings could be undertaken against the tenant. The tenant has contested the joint inspection report and this calls on the manner in which the expert who undertook the now botched exercise was selected. The terms of the inspection it seems were not agreed beforehand. The agreement is silent on the manner of selecting an expert to undertake the inspection.

18. It is clear to the Tribunal that the relationship between the parties has been severed and any continued occupation will not serve the interest of justice. The question of the rent arrears due and the manner of carrying out inspection are secondary.

19. In exercise of the powers granted to the Tribunal by dint of Section 12 of CAP 301 and in view of the findings above, the following orders commend itself:a.The tenant shall forthwith but not later than 7 days, vacate the demised premises. For the avoidance of doubt, the tenant shall be allowed to remove their tools and other belongings. The nearest police station to supervise the compliance with this order.b.The parties to negotiate and mutually settle on an expert to carry out joint inspection within 14 days from the date hereof. In the event they fail to agree, either party shall be at liberty to approach the Tribunal to appoint the said expert.c.The parties to enforce any outstanding contractual obligations after the joint inspection through the appropriate forum and means.d.Each party to bear their own costs of the application dated 13th September,2023.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY, 2024. HON. PATRICIA MAYMEMBERBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of;Kinyua for the TenantMalelu for the landlord