Gusii Mwalimu Sacco Limited v Osano [2025] KEBPRT 154 (KLR)

Gusii Mwalimu Sacco Limited v Osano (Tribunal Case E057 of 2022) [2025] KEBPRT 154 (KLR) (7 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 154 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E057 of 2022

Gakuhi Chege, Chair & J Osodo, Member

March 7, 2025

Between

Gusii Mwalimu Sacco Limited

Landlord

and

Jared Osano

Tenant

Ruling

A. Dispute Background 1. The tenant/Applicant moved this Tribunal vide a motion dated 16th May 2024 seeking in pertinent part that this Tribunal be pleased to review and/or set aside its orders of 13th May 2024. The Applicant further seeks for hearing of the matter on priority basis and that costs of the application be provided for.

2. The application is predicated upon the grounds set out on the face thereof and the tenant’s affidavit sworn on 16th May 2024. It is the tenant’s case that he was still a tenant in the landlord’s premises known as L.R NO. KISII BLOCK II/93 commonly known as Mwalimu Plaza as evidenced by annexure “JO 1”.

3. According to the tenant, the case did not feature in the Tribunal’s cause list for 13th May 2024 marked “JO 2”. As a result, the tenant’s advocate did not attend court and adverse orders were issued against him.

4. The tenant became aware of the adverse orders after his advocate perused the court file and informed him of the same. Following the said turn of events, the tenant filed the instant application.

5. The application is opposed through the replying affidavit of Evans Atei Masira sworn on 9th January 2025 wherein it is deposed that the tenant failed to annex a certified copy of the Tribunal’s order of 13th May 2024 making the application defective.

6. It is the landlord’s case that an inspection was done on 12th April 2023 and a report marked annexure “EAT-1” was filed herein. The said report was adopted on 13th May 2024 and has not been set aside. It is deposed that the Applicant is not a tenant in the suit premises.

7. It is therefore the landlord’s case that this Tribunal is functus officio in so far as the said inspection report is concerned. The said report had confirmed that there was no tenant/landlord relationship between the parties herein and as a result, the matter was marked as settled. In view of the said orders, the only recourse available to the Applicant was to appeal to the Environment and Land Court.

8. The application was directed to be canvassed by way of written submissions. Both parties complied with the landlord filing its submissions dated 10th January 2025 while the tenant’s submissions are dated 26th May 2025.

Issues for determination 9. The following issues arise for determination; -a.Whether the Applicant is entitled to the reliefs sought in the application dated 16th May 2024. b.Who shall bear the costs of the application?Issue (a) Whether the tenant is entitled to the reliefs sought in the application dated 16th May 2024.

10. As observed above, the tenant moved this Tribunal vide a motion dated 16th May 2024 seeking in pertinent part that this Tribunal be pleased to review and/or set aside its orders of 13th May 2024. The Applicant further seeks for hearing of the matter on priority basis and that costs of the application be provided for.

11. The application is predicated upon the grounds set out on the face thereof and the tenant’s affidavit sworn on 16th May 2024. It is the tenant’s case that he was still a tenant in the landlord’s premises known as L.R NO. Kisii Block II/93 commonly known as Mwalimu Plaza as evidenced by annexure “JO 1”.

12. According to the tenant, the case did not feature in the cause list marked “JO 2” for 13th May 2024. As a result, the tenant’s advocate did not attend court and adverse orders were issued against him.

13. The tenant became aware of the adverse orders after his advocate perused the court file and informed him of the same. Following the said turn of events, the tenant filed the instant application.

14. The application is opposed through the replying affidavit of Evans Atei Masira sworn on 9th January 2025 wherein it is deposed that the tenant failed to annex a certified copy of the Tribunal’s order of 13th May 2024 making the application defective.

15. It is the landlord’s case that an inspection was done on 12th April 2023 and a report marked as annexure “EAT-1” was filed herein. The said report was adopted on 13th May 2024 and has not been set aside. It is deposed that the Applicant is not a tenant in the suit premises.

16. It is therefore the landlord’s case that this Tribunal is functus officio in so far as the said inspection report is concerned. The said report had confirmed that there was no landlord/tenant relationship between the parties herein and as a result, the matter was marked as settled. In view of the said orders, the only recourse available to the Applicant was to appeal to the Environment and Land Court.

17. The landlord in its submissions, cites the decisions in the cases oF Phoenix Of East Africa Assurance Co. Ltd Vs S.m Thiga T/a Newspaper Service (2019) eKLR , Republic Vs Karisa Chengo & 2 Others (2017) eKLR , Owners Of Motor Vessel “lillian S” Vs Caltes Oil (kenya) Ltd (1989) KLR 1and Republicvs Chairman Business Premises Rent Tribunal & Another Ex-parte Carrington Complex Limited (2019) eKLR to buttress its contention that this Tribunal has no jurisdiction to grant the reliefs sought by the Applicant.

18. We have read the said decisions which are all from our Superior Courts and note that they are not only binding upon us but also espouse settled law. We are therefore required to determine whether they are applicable to the circumstances of this case.

19. The orders sought to be reviewed or set aside in this matter were given ex-parte after the Applicant and his advocate failed to attend court. We have checked the cause list annexed to the affidavit in support of the application and confirmed that indeed, on 13th may 2024, the mater was not listed. It is therefore true that the same was heard in absence of the Applicant in circumstances which cannot be blamed on him or his advocate.

20. In the case of Shah V Mbogo [1967] E A 116 at page 123 paragraph B, Judge Harris, as he then was, had this to say on the discretion to set aside ex-parte orders–“The 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 the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”The said judgment was approved by the Court of Appeal in Mbogo V Shah [1968] EA 93 and in Shabir Din V Ram Parkash Anand (1955) 22 EACA 48 where Briggs JA (as he then was) said at page 51 as follows:“I consider that under order 9 rule 20, the discretion of the Court is perfectly free and the only question is whether upon the facts of any particular case it should be exercised. In particular, mistake or misunderstanding of the appellant’s legal advisers, even though negligent, may be accepted as a proper ground for granting relief, but whether it will be so accepted must depend on the facts of the particular case. It is neither possible nor desirable to indicate in detail the manner in which the discretion should be exercised.”

21. The main contention by the landlord is that this Tribunal has no jurisdiction to grant the orders sought by the Applicant. Section 12(1)(i) of Cap. 301 provides one of the powers of the Tribunal as follows: -“to vary or rescind any order made by the Tribunal under the provisions of this Act.”

22. The orders sought to be set aside were made without granting the tenant an opportunity to comment on the Rent Inspector’s report which the landlord believes is final and binding upon this Tribunal. The said report was prepared pursuant to Section 12(3) of Cap 301 which provides as follows: -“(3)A Tribunal may employ officers, valuers, inspectors, clerks and other staff for the better carrying out of the purposes of this Act:Provided that, where a Tribunal has deputed a valuer, inspector, officer, or other person to inspect or view any premises, any report made in that behalf shall be communicated to the landlord or tenant or both.” (emphasis added).

23. Based on the foregoing legal provision, the Rent inspection report ought to have been communicated to both parties who were entitled to comment thereon before its adoption by this Tribunal. The tenant being absent was not accorded an opportunity to comment thereon and the report cannot by any stretch of imagination be deemed to be binding on this Tribunal.

24. We are guided by the decision in the case of in Mbaki & Others Vs. Macharia & Another [2005] 2 EA 206, at page 210 wherein it was held as follows:“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”It did not matter that the learned Judge would have arrived at the same decision even after hearing the appellant. This much was appreciated by Nyarangi, JA in Onyango vs. Attorney General [1986-1989] EA 456, at page 460:“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”

25. In the premises, the application dated 16th May 2024 ought to be allowed and the ex-parte orders given on 13th May 2024 are hereby set aside to allow the matter to proceed to hearing and determination on the merits.

Issue (b) Who shall bear the costs of the application? 26. As regards costs, the same are in the Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. As the matter shall proceed to hearing and determination, the costs of the application shall abide the outcome of the main case.

Orders 27. In view of the above analysis, the orders which commend to us are;a.The Applicant’s application dated 16th May 2024 is hereby allowed in terms of Prayers 2 & 3 thereof.b.The matter shall proceed to hearing by way of viva voce evidence on 21st April 2025 based on the documents on record.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF MARCH 2025HON. GAKUHI CHEGE- (PANEL CHAIRPERSON)HON. JOYCE AKINYI OSODO - (MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of: -Ms Ogutu holding brief for Nyamweya for the TenantRucho for the Landlord