Grand Muraille Investments Limited v Maingey on Behalf of Ack Church Kwa Maingey [2025] KEBPRT 181 (KLR)

Grand Muraille Investments Limited v Maingey on Behalf of Ack Church Kwa Maingey (Tribunal Case E565 of 2023) [2025] KEBPRT 181 (KLR) (7 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 181 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E565 of 2023

CN Mugambi, Chair & Joyce Murigi, Member

March 7, 2025

Between

Grand Muraille Investments Limited

Tenant

and

Andrew Kitili Maingey on Behalf of Ack Church Kwa Maingey

Landlord

Ruling

1. The Tenant/Applicant’s motion dated 21. 1.2025 seeks an order that the Tenant be granted leave to file the Supplementary list of documents attached to its affidavit and the same be deemed as duly filed and served and forming part of the Tenant’s documents.

2. From the Tenant’s supporting affidavit, the documents that the Tenant intend to introduce include;a.The Tenant’s certificate of incorporation.b.The Tenant’s certified Bank Account Statements.c.The Tenant’s Book of Accountsd.Mpesa receipt dated 6. 10. 2024.

3. The Tenant has stated/deponed that its 3rd witness is still on the stand and his re-examination has not commenced and further that the Landlord who has not started his case will have the opportunity to cross examine the witness on the documents.

4. The Tenant has deponed in its affidavit that the additional documents do not in any way affect the original pleadings and the prayers for compensation sought and that the additional documents are not voluminous and the Landlord should have no problem responding to them. It is the Tenant’s position that the Landlord will not suffer any prejudice if the documents are allowed into the proceedings.

5. The Landlord has opposed the Application by inter alia deponing that the Tenant had an ample opportunity to file the documents but failed to do so. The Landlord has also deponed that the Tenant was served with a notice to produce documents on 16. 2.2024 but intentionally failed to file the documents.

6. I have read the affidavits by the parties and the submissions filed by the Tenant’s Counsel. The only issue I have to determine is whether the Tenant’s Application ought to be allowed.

7. I appreciate the fact that the Tenant has not closed its case and that the Landlord has not commenced its case. I am of the view that the Landlord will not suffer any prejudice as its Counsel will have an opportunity to cross examine the Tenant’s witnesses and when the Landlord’s witnesses finally take to the stand, they will have an opportunity to give their comments on the additional documents if they need to.It is my view therefore that the Landlord will not suffer any prejudice and I agree with and I am guided by the decision of the court in the case of; Johana Kipkemei Too v Hellen Tum [2014] eKLR where the court stated;“This however is not to say that the court can never under any circumstances permit a party to adduce additional evidence that was not furnished to the other party as provided under the rules. The court as a shrine of justice has a mandate to do justice to all parties and not to be too strictly bound by procedural technicalities.This flows from the provisions of Article 159(2) of the Constitution.Where such evidence can be adduced without causing undue prejudice to the other party, the court ought to allow the application so as to allow such party the opportunity to present his case in full. The court may consider various factors including but not restricted to the earlier availability of the witness the discovery of a new document and the stage of the proceedings at which the additional evidence is sought to be introduced. If for example the trial has not started, little prejudice may be caused to either party if one is permitted to introduce additional evidence. The prejudice to the other party no doubt increases as the trial progresses. But it is up to each court to weigh the surrounding circumstances of each case, and determine whether it will be on the interests of justice to allow such evidence to be tendered, though outside the time frame provided by the rules.”

8. Consequently, and in the circumstances of this case, I do find that the Tenant’s Application is merited and proceed to allow the same. The costs will abide the outcome of the Reference.

HON. CYPRIAN MUGAMBICHAIRPERSON - BUSINESS PREMISES RENT TRIBUNALDELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2025 BY;HON. JOYCE MURIGIMEMBER - BUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Musyoka for the Tenant/Applicant; in the absence of the Respondents.Court: Hearing will be on 31. 3.2025. Applicant to serve for the hearing date.