Gichimu v Kinyanjui [2022] KEBPRT 810 (KLR)

Gichimu v Kinyanjui (Tribunal Case E023 of 2022) [2022] KEBPRT 810 (KLR) (Civ) (1 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 810 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E023 of 2022

Gakuhi Chege, Vice Chair

November 1, 2022

Between

Elijah Maina Gichimu

Tenant

and

James Mwangi Kinyanjui

Landlord

Ruling

1. Before me is an application dated June 27, 2022, in which the applicant seeks in material part for setting aside the proceedings and orders of June 21, 2022. He also seeks for restraining orders against the Respondent from interfering with his possession of the suit premises known as plot No. 13F3, Kayole along Nairobi-Naivasha Highway and removal of stones dumped in front of the suit premises. He finally seeks for an order of reconnection of electricity to the suit premises and that the OCS, Naivasha Police Station ensures compliance.

2. On June 21, 2022, the applicant’s application dated April 21, 2022 was dismissed for want of attendance and prosecution. The other reason for dismissal was that this Tribunal lacked jurisdiction in absence of evidence of landlord/tenant relationship.

3. The applicant states that he failed to attend court due to low internet connection on June 21, 2022 when this Tribunal conducted its virtual proceedings. It is the applicant’s contention that he has been conducting business on the suit premises for over seven years and paying rent to the respondent as per Mpesa statements annexed to his supporting affidavit marked ‘EMG1’. If the orders given on June 21, 2022 are executed, the applicant states that he will be grossly prejudiced.

4. On the other hand, the applicant contends that the landlord will not suffer any prejudice whatsoever if the orders sought are granted to enable the matter to be heard on merit.

5. The applicant states that upon taking possession of the suit premises, he developed it by erecting structures thereon and has been paying Kshs.2000/- to the landlord who gave possession to him. The developments are shown on photographs marked ‘EMG2’.

6. The applicant deposes that after the dismissal orders were issued, his electricity was disconnected and the Respondent dumped huge stones and blocks in front of the business premises thereby blocking customers access thereto as evidenced by annexure ‘EMG3’.

7. If the orders sought are not granted, the applicant contends that he shall have been condemned unheard. He maintains that he shall be able to demonstrate at the hearing that he is not a stranger to the landlord.

8. The application is opposed through the respondent’s replying affidavit sworn on August 1, 2022 wherein it is deposed that he is not the applicant’s landlord and that the latter is not his tenant. He further deposes that he does not own plot No. 13F3 and never leased it to the applicant.

9. According to the respondent, the applicant was living on a plot belonging to one Livingstone Macharia Mwangi who is deceased. The respondent deposes that he was the caretaker of the said plot but after his demise, his widow and sons requested him to leave and thus relocated to Ndunyu Njeru.

10. The respondent deposes that he had accommodated the applicant after he was affected by instability which followed 2017 elections after he migrated from Western Kenya where he had been living but never leased the suit premises to him.

11. Sometimes in 2020, the applicant decided to give him Kshs.31,500/- as an expression of gratitude which was paid between the year 2020 and March 2021 and upon the applicant’s relocation to Ndunyu Njeru in April 2021, it was agreed that the applicant looks for alternative accommodation.

12. The applicant is said to have been living in a cabin built by the Respondent on the suit plot. The respondent was shocked to learn last year that the applicant continued living on the suit premises.

13. Therespondent contends that from what is presented by the applicant, there is no record of any money paid to him from May 2021 and the last Mpesa payment was on May 22, 2021 which was reversed.

14. The respondent denies issuing any notice to the applicant and did not allow him to occupy the premises. He also denies depositing the stones on the suit premises.

15. The application was directed to be canvassed by way of written submissions but only the applicant complied.

16. The issues for determination based on the pleadings are:-a.Whether the applicant is entitled to the reliefs sought in the application dated June 27, 2022. b.Who is liable to pay costs?.

17. The principles upon which applications to set aside ex-parte judgements are considered were settled in the case of Shah v Mbogo & another (1967) EA 117 at page 123 as follows:-“I have considered in relation to the present application, the principles governing the exercise of the court’s discretion to set aside a judgment obtained ex-parte. This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice”.

18. I have looked at the reasons proferred by the applicant on his failure to attend court on June 21, 2022 and it is my considered view that the explanation is reasonable more so given that he was acting in person. It is quite possible that technology failed him as it always happens even in most sophisticated situations like national elections. I am ready to buy the same. The ex-parte orders are thus set aside.

19. The issue as to whether there exists a landlord/tenant relationship between the parties herein in my view ought to be considered at the full hearing.

20. The respondent having denied that he deposited the huge stones and blocks in front of the suit premises or disconnected electricity thereto will not suffer any prejudice if I authorize the applicant to remove the obstructions and reconnect electricity to the suit premises. The OCS, Naivasha Police Station shall ensure that peace and order is maintained during the said process and thereafter.

21. Costs of any action before the Tribunal are in the discretion of the Tribunal undersection 12(1) (k) of cap301, Laws of Kenya. I shall direct that the same abide the outcome of the main reference.

22. In conclusion, the orders which commend to me are:-i. The application dated June 27, 2022 is allowed to the extent that the orders of June 21, 2022 are hereby set aside.ii. The applicant is authorized to remove the stones obstructing the suit premises and to reconnect electricity supply to the premises.iii. The OCS, Naivasha Police Station shall ensure that peace and order is maintained during the said process and thereafter.iv. The issue of existence of a landlord/tenant relationship between the parties herein shall be determined upon hearing the matter by way of viva voce evidence.v. The costs of the application shall abide the outcome of the reference.

It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 1ST DAY OF NOVEMBER 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Tenant/Applicant presentNo appearance for the landlordFurther order: Mention on 8th December 2022 for further orders and directions.Parties to comply with order 11 of Civil Procedure Rules by filing and exchanging witnesses statements and documents in support of their respective cases.Orders to be served upon the Respondents.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL3