Certain Destiny Enterprises v Paul Kimani Kamau [2021] KEBPRT 137 (KLR)
Full Case Text
REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. E260 OF 2021 (NAIROBI)
CERTAIN DESTINY ENTERPRISES.....LANDLORD/APPLICANT
VERSUS
PAUL KIMANI KAMAU.............................TENANT/RESPONDENT
RULING
1. The Landlord’s notice of motion dated 28th June 2021 seeks orders that the Landlord be granted leave to levy distress against the Respondent’s movable goods for recovery of rent arrears and that the Tenant does give vacant possession of shop No 2, plot LR 209/1728 along Limuru Road. The application further seeks the assistance of the OCS Parklands Police Station in “supervising the orders.”
2. The application is based on the grounds on the face of the said application and the affidavit of Simon Njenga Ndaba which may be summarized as follows;
a. That he is a Director of the Applicant/Tenant (sic).
b. That the Respondent is a Tenant of the Applicant paying a monthly rent of Kshs 20,000/-.
c. That the Tenant stopped paying rent in October 2020.
d. That on 30th March 2021, the Applicant issued a notice to give vacant possession to the Tenant, upon being served, the Tenant closed the shop.
e. That the Tenant has not filed any objection to the notice served upon him by the Landlord/Applicant.
f. That the rent arrears as at 5th June 2021 stood at Kshs 180,000/-.
3. I have gone through the pleadings filed by the Landlord/Applicant carefully. Whereas the Landlord states that the Tenant was served with the notice to give vacant possession dated 30th March 2021, I have seen no evidence of service of the same. One would have expected an affidavit of service to the effect that the Tenant had been served with the notice. That being the case, I am not satisfied that the Tenant was served with the tenancy notice dated 30th March 2021.
4. There is further no evidence that the Tenant has been served with the reference dated 28th June 2021.
5. On 28th July 2021,the Applicant was ordered to serve the application dated 28th June 2021 for hearing on 12th August 2021. The Process Server, one Mr Solomon Mbugua states that he served the court documents upon the Tenant via whatsapp on cell phone No 0726701284. Yet again, there is no evidence that any such service took place, the Process Server seeks to prove this fact by a bare averment on his affidavit of service at paragraph 3 thereof.
6. He has further stated that he proceeded to the Tenant’s business premises and slipped the documents under his door.
7. Order 5 Rule 14 of the Civil Procedure Rules is in the following terms;
“Where the serving officer after using all due and reasonable diligence cannot find the Defendant, or any person on whom service can be made, the Serving Officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or comes or business or personally works for gain and shall then return the original to the Court from which it was issued together with an affidavit of service.”
8. The proper thing for the Process Server to have done was to affix the court documents on the outer door of the Tenant’s business premises or any other conspicuous part of the premises. slipping the documents under the door of the Tenant’s business premises does not in my view satisfy the requirements of the above rule on service of court documents.
9. Granting the orders sought by the Landlord in view of my finding that the Tenant was not properly served would be an affront to the Tenant’s right to a fair hearing.
10. The upshot is that the Landlord’s application dated 28th June 2021 is dismissed with no order as to costs.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this5thday of November, 2021 in the presence of Ms Mungaholding brief forMr Kariukifor theLandlordand in the absence of theTenant.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL