Gisaga v Kiruja [2024] KEBPRT 175 (KLR)

Gisaga v Kiruja (Tribunal Case 47 of 2020) [2024] KEBPRT 175 (KLR) (7 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 175 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 47 of 2020

P May, Member

February 7, 2024

Between

Abdalla Mutembei Gisaga

Landlord

and

Patricia Kathure Kiruja

Tenant

Ruling

1. The Tribunal rendered a judgement in the present dispute on 3rd March, 2023. The following were the final orders issued by the Tribunal through the said judgement:a.The tenant is successful in his claim for refund on the cost incurred in renovations and is awarded Kshs.1,650,000/-b.The tenant is awarded the unutilized rent for 7 months totaling Kshs. 112,000/c.The landlord shall settle utility billsd.Deposits made to the Tribunal accounts shall be released to the tenant.e.Rent payment made to the landlord for January to August 2022 to be refunded to the tenant as the landlord was not entitled to those payments.f.The tenant is awarded the costs of the reference assessed at Kshs. 175,000/-

2. It would seem like the dispute between the parties herein remained live even after the Tribunal had pronounced itself. The tenant approached the Tribunal seeking for orders to be allowed to access her items vide the notice of motion dated 11th August, 2023. The tenant stated that her tools of trade were locked in the premises and she could only access the same with an order of the Tribunal. The application was placed before the Tribunal whereby the tenant was ordered to effect service.

3. The landlord filed an application dated 29th August, 2023 seeking for orders to direct the tenant to relinquish the possession of the premises. The parties appeared before me on 14th September, 2023 it was noted that the tenant had made a second application dated 14/8/2023 seeking for orders similar to those sought in his earlier application. The 3 applications were heard simultaneously as the same sought similar orders through divergent approaches; a testament of the protracted litigation the parties had engaged in. The record indicates that owing to the above and the compromise made by the parties, each of them was granted favourable orders.

4. The landlord however took a quick and complete about- turn and sought to review the orders issued on 14/9/2023 vide his application dated 19th September, 2023. The landlord in the said application sough for stay of execution of the orders issued. The landlord accused the Tribunal of failing to determine his previous application on merit and that there was an error apparent on the record to warrant the grant of the prayers for review sought.

5. It is the above application that is pending before the Tribunal and which this ruling seeks to determine. The tenant has opposed the application through his detailed replying affidavit. The tenant maintained that the landlord has not met the threshold for stay pending appeal and review thus the application is non- starter and a mere delay tactic and amounts to abuse of the process of the Honourable Tribunal.

6. When I retired to draft this ruling, I took time to peruse through the record as the landlord’s application cast aspersions on the competence of this Honourable Tribunal. Mistakes are bound to happen and this Tribunal may sometimes err. This is the exact reason the Tribunal by dint of section 12 of cap 301 is clothed with the power to review its own decisions and orders.

7. In considering an application for review, the Tribunal draws guidance from 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 Court 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 Act gives 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.”

8. The grounds in which a Court/ Tribunal 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.”

9. Therefore, in order for the landlord herein to succeed in this application, he must satisfy either of the conditions stipulated in order 45 rule 1 of the Civil Procedure Ruleswhich 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.

10. The landlord has in the grounds cast their net wide on why they are deserving the orders sought. He has even challenged the fact that the tenant did not file an affidavit of service before the hearing on 14/9/2023 where the Tribunal issued the orders being challenged.

11. From the application, the landlord has tactfully dodged the fact that he was present during the hearing on 14/9/ 2023 and as per the record, he was opposed to some of the prayers sought. It is the Tribunal’s view that this kind of conduct should not be entertained even by an inch as it serves no other purpose than wasting the Tribunal’s precious judicial time. The landlord is by the doctrine of estoppel estopped from without any sufficient cause trying to rescind from his earlier position.

12. In view of the above, it is clear that the landlord’s application is a non- starter but a mere delaying tactic being used by a litigant seeking to have a second bite at the cherry. The Tribunal has noted that the landlord has preferred an appeal being Chuka ELCA E008/2023. Noting the conduct of the parties, the Tribunal shall not entertain any further application save for where there is an express order from the superior court, until the appeal is heard and determined. The parties can canvass any issue stemming the orders issued by the Tribunal at the appellate court.

13. In the end, the landlord’s application dated 19/9/2023 is dismissed with costs assessed at Kshs. 25,000 awarded to the tenant. The parties shall forthwith comply with the previous orders issued by the Tribunal.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF FEBRUARY, 2024. HON. PATRICIA MAY - MEMBER02. 2024Delivered in the presence of;Ms. Kirui holding brief for Anguche for the TenantNo appearance for the landlord