Bina Wholesalers & 2 others v Baringo United Company Limited [2022] KEBPRT 1089 (KLR)

Bina Wholesalers & 2 others v Baringo United Company Limited (Tribunal Case 173 of 2019) [2022] KEBPRT 1089 (KLR) (20 April 2022) (Ruling)

Neutral citation: [2022] KEBPRT 1089 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 173 of 2019

CN Mugambi, Chair

April 20, 2022

Between

Bina Wholesalers

1st Tenant

West Commercial

2nd Tenant

Menengai Spices

3rd Tenant

and

Baringo United Company Limited

Landlord

Ruling

Introduction 1. The Tenants/Applicants notice of motion dated 24. 6.2022 seeks orders that the Tribunal varies or sets aside proceedings and the consequent order of dismissal issued on the 22. 10. 2022 and seeks a further order that the Tribunal be pleased to reinstate the reference filed herein for purposes of hearing and determination on merits.

The Applicants depositions 2. The affidavit of Mr. Daniel Kisilah Gor in support of the application has made depositions that sometimes in July 2019, the Respondent herein issued the tenants with a notice to terminate tenancy for the reasons that the Respondent was desirous of demolishing the suit premises and putting up in its place a modern structure.

3. The deponent depones that the tenants did not file their references to the tribunal in time due to inadvertent and excusable mistake and thereby filed an application for leave to file the reference out of time and which application was allowed.

4. The deponent further states that due to technical hitches, the tenants were not able to file their references in time and the time for compliance with the court orders dated 19. 8.2021 lapsed.

5. That on 22. 10. 2021, the tenants’ application dated 9. 10. 2021 was dismissed for non-attendance.

6. Counsel for the tenants further depones that the Applicants stand to suffer irreparable loss and would also be exposed to a risk of loss and damage should the orders of court dated 22. 10. 2021 (not be varied or set aside).

The Respondent’s depositions 7. The affidavit of Vincent Kiptoon sworn on 14. 11. 2022 may be summarized as follows hereunder.

8. Counsel has deponed that the Applicants herein are not tenants in the Respondent’s premises BUT trespassers.

9. Counsel for the Respondent has also deponed that the tenants were indeed served with notices to terminate tenancy dated 26. 6.2019 on 18. 7.2019, the tenants did not move out of the premises nor did they file references against the said notices.

10. It is further deponed in the said affidavit that the tenancy relationship between the Applicants and the Respondent lapsed on 1. 11. 2019 when the termination notice took effect.

11. Counsel for the Respondent has also deponed that by their application dated 3. 12. 2021, the Applicants applied for extension of time to file their references which application was allowed.

12. Further deponed that the Tenants were granted fourteen days to file references but they failed to do so as a consequence of which Section 10 of Cap 301 took effect and the Applicants reverted to their status as trespassers.

13. It is further deponed that the difficulties allegedly experienced by the Tenants in filing their references revolve around 1st and 2nd September 2021 and there is no explanation as to what the Applicants were doing from/since 9th August 2021 to 1st September 2021.

14. Further deponed that it cannot be true that the Tribunal’s electronic filing system experienced technological challenges from 19th August 2021 to 1st September 2021, this would have raised serious concerns. The Applicants have not tendered any communication from the Tribunal to evidence this breakdown of the filing system.

15. The Applicants on 9. 9.2021 lodged another application for extension of time to file references, the application was fixed for hearing on 8. 1.2021.

16. The Counsel depones that on 8. 10. 2021 the Tribunal gave directions on the matter and fixed it for hearing on 22. 10. 2021, on this day, the Applicants did not attend court and their application was dismissed.

Analysis and determination 17. The only issue that arises for determination is whether the Applicants are entitled to a grant of the prayers they have sought in their application.

18. The Applicants first applied for extension of time to file their references by their application dated 3. 12. 2019. Whereas the Applicants admitted in that application to have been served with the notices to terminate their tenancies, they attributed their failure to file references to the negligence acts of their Advocates’ clerk. In the affidavit in support of the application dated 3. 12. 2019, at paragraph 6, it is deponed as follows:-“That I thereafter immediately prepared the requisite reference and dispatched them for filing but instead of lodging the same, my office clerk inadvertently filed away the file alongside the unfiled reference.”

19. The court was convinced by the arguments and allowed the application dated 3. 12. 2019 on the following terms;-“(i)That leave be and is hereby granted to the Applicants herein to file a reference against the landlord’s notice of termination of tenancy dated 26. 6.2019 within the next fourteen (14) days hereof failing which the leave shall lapse.(ii)That the landlord’s notice to terminate tenancy dated 26. 6.2019 shall be of no effect until the determination of the determination of the proposed reference

20. The Applicants did not file the references within the fourteen (14) days granted by the court as a result of which the leave granted automatically lapsed as per the orders issued by the court.

21. In a bid to salvage the situation, the Applicants applied, by their application dated 9. 9.2021, for an order that the court be pleased to extend time for the Applicants to file reference in terms of the leave granted on 19. 8.2021. The Tenants this time blamed technological challenges for the failure to lodge their references within time.

22. On 20. 9.2021, the court fixed the application dated 9. 9.2021 for hearing on 8. 10. 2021. on 8. 10. 2021, the parties attended court and directions were issued one of which was that the matter would be mentioned on 22. 10. 2021.

23. On 22. 10. 2021, the Applicants and Counsel did not attend court and the court made the following orders:-“There being no compliance with the orders of 8. 10. 2021 by the Applicants/Tenants, the application dated 9. 9.2021 is hereby dismissed with costs to the Respondent/Landlord.”

24. On 24. 6.2022, the Applicants once again applied to set aside the orders issued by the court on 22. 10. 2021 (the application erroneously states the date to be 22. 10. 2022). This was approximately eight months after the orders sought to be set aside were issued.The application dated 24. 6.2022 is grounded on paragraph 11 where it is deponed;“That the matter came up for mention on the 22nd day of October 2021 where the court dismissed the application dated 9. 10. 2021 as the Applicants were unable to attend due to excruciatingly forlon circumstances that led to the inadvertent mistake of not diarizing the same.”

25. The Applicants have not explained what the “excruciatingly forlon circumstances” that led to the failure to diarize the matter. This statement is even more unfortunate for the reason that when the matter was fixed for mention on 22. 10. 2021, the record shows that Mr. Murithi held brief for Kisila for the Applicants and Mr. Kiproon appeared for the landlords. This was not the first time Mr. Murithi was appearing in this matter for the tenants as the record clearly shows that on 2. 6.2021 and 18. 6.2021 Mr. Murithi appeared for the tenants. In the absence of any further explanation, I do not find the reasons given by the tenants for their non-attendance in court on that material day to be plausible.

26. The power of the court to set aside orders and judgments is discretionary. It must be exercised judiciously and not capriciously. In the case of; Mbogo vs Shah (1968) EA 93, the court held that:-“…the discretion to set aside an exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”

27. The conduct of the tenants in this case does not endear them to the exercise of the court’s discretion in their favour. Right from the time they were served with notices to terminate their tenancies in the year 2019, they have faltered in every step they took. The landlord cannot be blamed in any way or for any of the mishaps of the tenants. The landlord has diligently pursued its rights, right from the issuance of the notices to terminate tenancy up to the filing of the instant application. The Tribunal must in the circumstances be alive to the interests of both parties.

28. I am not satisfied that the Applicants have demonstrated any error or excusable mistake to warrant the setting aside of the orders issued on 22. 10. 2021. I also find the period of approximately eight (8) months before the application was made to be inordinate delay. Consequently, I do not find any merit in the Tenants application dated 24. 6.2022 and the same is hereby dismissed with costs to the landlord.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF APRIL 2022. HON. CYPRIAN MUGAMBI - CHAIRPERSON20. 4. 2022In the presence of;Mr. Kiptoon for the landlordMs. Mwangi for the Tenants