James Gaichuru v Jeremiah Karani Themendu [2020] KEBPRT 62 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 288 OF 2017 (NAIROBI)

JAMES GAICHURU............................................................TENANT

VERSUS

JEREMIAH KARANI THEMENDU...........................LANDLORD

RULING

The Tenant/Applicant by the Applicant dated 17th December 2018 is seeking to set aside the orders of the Tribunal issued on 17th December 2018.

The record of the Tribunal shows the following. The Landlord’s application dated 5th November 2018 was certified as urgent and fixed for hearing on 17th December 2018. On 17th December 2018, the advocate for the Tenant and the Tenant did not attend court but were duly served. The Tribunal issued the following orders;

1. The orders issued on 5th July 2018 and 1st August 2018 are discharged forthwith.

2. The Landlord is allowed to levy distress and recover outstanding arrears of rent of shs 95,000/-.

3. The Landlord is allowed to evict the Tenant from the suit premises upon the levying of distress.

4. The Tenant shall pay the Landlord costs of the application assessed at shs 20,000/-.

5. Costs shall be recovered as part of arrears of rent by way of distress.

The above orders are the ones which the Tenant/Applicant is seeking to have set aside. The Tenant’s application is supported by the affidavit of the advocate for the Tenant Kimandu Gichohi sworn on 17th December 2019.

The application by the Tenant is opposed by the Landlord. The advocate of the parties have filed written submissions which the Tribunal has read in details.

The following facts are not in dispute;

1. The advocate for the Tenant has not denied being served with the Landlord’s application dated 5th November 2018.

2. The advocate for the Tenant says that he was engaged at the Court of Appeal at Nyeri in civil appeal No 340/2014.

The core issue raised in the Landlord’s application dated 5th November 2018 was the issue of non-payment of rent by the Tenant. The arrears of rent stood at shs 95,000/-. The Tenant has not sworn any affidavit in this matter to address the issue of arrears of rent. The Tenant must satisfy the Tribunal hat he has a good defence to the Landlord’s claim. The Tenant’s advocate was served with the hearing notice to attend the Tribunal on 17th February 2018 on 2nd December 2019.

The Tenant’s advocate has not filed a replying affidavit to the application nor did they notify the Tenant to attend the Tribunal on 17th December 2018. There is no material before the Tribunal to satisfy it that the Tenant has no arrears of rent. The advocates of the Tenant should have filed an affidavit by the Tenant showing that he has no arrears of rent.

The Tribunal is of the considered opinion that a court order cannot be set aside for the sake of it.

The advocate was not in court. The Tenant was not in court and there is no evidence that the Tenant has paid the arrears of rent.

All in all, the Tribunal is satisfied that the Tenant’s application dated 17th December 2018 has no merits.

The Tribunal makes the following orders;

1. The Tenant’s application dated 17th December 2018 is hereby dismissed with costs to the Landlord assessed at shs 20,000/-.

2. The Landlord is at liberty to execute the orders issued on 17th December 2018.

3. Costs shall be recovered by way of distress as part of arrears of rent.

Ruling delivered this 27th day of May 2020 in the absence of the parties.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL