Gikonyo v Wahome [2025] KEBPRT 158 (KLR)

Gikonyo v Wahome (Tribunal Case E067 of 2024) [2025] KEBPRT 158 (KLR) (Civ) (11 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 158 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E067 of 2024

N Wahome, Chair & Joyce Murigi, Member

March 11, 2025

Between

David Gikonyo

Tenant

and

Margaret Muthoni Wahome

Landlord

Ruling

1. By an application dated 21/8/2024, the Tenant/Applicant sought the following reliefs;a)Spentb)That pending the hearing and determination of this application, this Honourable Tribunal be pleased to stay the execution of the Judgement delivered on the 10/08/2024 in favour of the Respondent.c)That this Honourable Tribunal be pleased to set aside the Judgement entered on the 19/08/2024 in favour of the Respondent, and the Applicant be granted leave to file his response out of time.d)That the draft replying Affidavit filed herewith be deemed as properly filed and that the Honourable Tribunal does give directions on the hearing and determination of this matter on its merits.e)That this Honourable Tribunal be pleased to grant such other or further orders as it may deem just and expedient in the circumstances.f)That the costs of this application be provided for.

2. The Application is supported by the Tenant’s Affidavit of an even date. Attached to the Affidavit is a draft Replying Affidavit dated DG1. On her part, the landlady filed the Replying Affidavit sworn on the 3/10/2024 and vehemently opposed the Application by the Tenant. It was her contention that the Tenant was aware of the proceedings but decided to ignore the same. She attached annexures “MMM1” and “2” to confirm service of the court processes on the Tenant.

3. Eventually, the parties consented to having the Application dated 21/8/2024 canvassed by way of written submissions. The Tenant filed his submissions dated 2/12/2024 but the landlady opted to reply on the pleadings on record.

4. We have perused the pleadings on record including the Tenant’s submissions and we are of the view that the only issue for determination is whether the Tenant should be afforded an opportunity to defend the Reference and Application dated 28/05/2024.

5. We do appreciate that to set aside a Judgment or even a Ruling is a discretion of this court but which must be exercised judiciously and not capriciously. Among the factors to be considered in taking such an action are whether there were procedural irregularities, whether the Applicant has demonstrated a strong defence and for the court to ensure that justice is done in the circumstances of each particular case.

6. Order 12 Rule 7 of the Civil Procedure Rules provides that;-“Where under this order Judgment has been entered or the suit has been dismissed, the court, on an application, may set aside or vary the Judgment or order upon such terms as may be just.”

7. In this matter, the Tenant has denied having been served with any court processes and has also faulted the notice of termination dated 27/04/2024 purportedly issued by the Senior Assistant Chief-Arutani Sub -location within Nakuru County. A casual perusal of the purported termination notice speaks to the fact that the same is not compliant with The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act cap 301 and in particular sections 4(2) & (4) and 7 thereof and also Regulation 4(1) of the Regulations to the Act.

8. We also appreciate that the Applicant filed the present Application timely and infact within only two days after the impugned order of this court. In our view therefore, the Tenant’s Application dated 21/8/2023, is for allowing as the same is merited and justice will be seen to have been done in the circumstances of this matter.

9. In this we also rely on the case of; Yoshin Engineering Corporation v Aia Architects Ltd (Civil Appeal E074 of 2022) [2023] KECA 872(KLR) C7/7/2023 where the court held that;-“However, even where the Judgment is regular, the court still retains the wide discretion to set the same aside, though if the court decides to set aside the Judgment depending on the circumstances, it may do so on conditions that are just. The discretion being wide, the main concern is for the court to do justice to the parties, and in so doing the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules.”

10. We would therefore allow the Application dated 21/8/2024 in its entirety and order that the costs thereof shall abide the outcome of the main Application and suit/reference herein.

11. In the final analysis, the orders that commend to us are the following;-(a)That the orders of this court made on the 19/8/2024 are hereby vacated and /or set aside.(b)That the Tenant has 14 days to respond to the Landlady’s suit and application and serve.(c)That the landlady shall have 14 days on service to file a Supplementary Affidavit and any further evidence if need be and serve.(d)That the costs shall abide the outcome of the main application and suit/reference.Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF MARCH 2025. HON. NDEGWA WAHOME, MBS,(PANEL CHAIRPERSON),BUSINESS PREMISES RENT TRIBUNAL,ANDHON. JOYCE MURIGI(MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of:Mr. Abuya for the Applicant/TenantMr. Bosire for the Landlord/Respondents