James Gichure Kiragu v George Warui Gathoni [2021] KEBPRT 81 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 1044  OF 2019 (NAIROBI)

JAMES GICHURE KIRAGU.................................RESPONDENT/TENANT

VERSUS

GEORGE WARUI GATHONI.............................APPLICANT/LANDLORD

RULING

1. Before me is a motion dated 30th June 2021 in which the Landlord is seeking in material part that the proceedings and orders issued on 15th June 2021 and all consequential orders arising therefrom be set aside and that the Applicant’s process server be availed for cross-examination.

2. The application is supported by the affidavit of the landlord sworn on 30th June 2021 and the grounds set out on the face of the application.

3. The Landlord deposes that he became aware of the application dated 9th June 2021 when he found the order issued by the Tribunal plastered on the property on 25th June 2021.

4. He therefore visited the Tribunal registry where he was informed that the matter proceeded on 15th June 2021 in his absence and the Respondent’s application allowed.

5. He thereafter proceeded to his advocates office for advice and instructed them to establish the nature of the application dated 9th June 2021 which gave rise to the orders of 15th June 2021 and thereafter apply to set aside the same.

6. The affidavit of service by Dolphine Damaris Awour sworn on 14th June 2021 indicated that the Landlord was called on 11th June 2021 through his mobile phone no. 0727061663 and requested to furnish his email address. He was thereafter served with a copy of the application and hearing notice through his email address georgegathoni26@yahoo.com.

7. The Landlord however denies service of the application and hearing notice and deposes that the process server did not call him on the said date and that the email does not belong to him as his email address is georgegathoni36@gmail.com.

8. He therefore seeks leave to summon the process server for cross-examination on the contents of her affidavit of service sworn on 14th June 2021.

9. The Landlord further deposes that the Respondent have known his residential property having served him on 25th June 2021 and nothing stopped him from serving the court process in person.

10. As such, he seeks for setting aside of the default orders for being irregular in order that he can be afforded an opportunity to respond to the application dated 9th June 2021 on merits.

11. The application is opposed through the Tenant’s replying affidavit sworn on 23rd July 2021 wherein it is deposed that the Landlord’s email address is georgegathoni26@yahoo.com which was used by him while serving the tenant with a copy of lease as per annexture “JCK-3” on January 2019 at 14. 39 hours.

12. It is the Tenant’s case that upon service of the said application and hearing notice, there was no return message to indicate that the mail was not delivered to the recipient of the email.

13. The tenant deposes that the Landlord was properly and duly served on his email address aforesaid and it was not mandatory to physically serve the documents as electronic service is allowed under order 5 Rule 22 (b) and (c) of the Civil Procedure Rules.

14. The Tenant therefore contends that the Landlord’s application is misconceived, frivolous, vexatious and an abuse of court process.

15. I am now called upon to determine the following issues:

(a) Whether the Landlord is entitled to the orders sought in the application.

(b) Who is liable to pay costs of the application?

16. I have considered the application and the response thereto and the main issue for determination is whether the Landlord was properly served with the same as well as the hearing notice for 15th June 2021.

17. Order 5 Rule 23 B of the Civil Procedure Rules provides:-

“(1) Summons sent by electronic mail service shall be sent to the defendant’s last confirmed and used e-mail address.

(2) Service shall be deemed to have been effected when the sender receives a delivery receipt”.

18. In the instant matter, although the Landlord disowns the email address used by the tenant, there is evidence contained in annexture ‘JGK-3’ to show that the same email address was used by him to forward the final draft of the lease agreement for the tenant’s signature on 7th January 2019 at 14. 39 hours.

19. I find and hold that the application and hearing notice were properly served upon the landlord. In any case, I note that the application was not opposed by the time it came up for hearing on 15th June 2021 and was for allowing.

20. Having found that service was proper, I proceed to find that the orders made on 15th June 2021 are regular and are not liable to be set aside. I have seen the decision in the case of James Kanyita Nderitu & Another – vs- Marios Philotus Ghikas & Another (2016) eKLR cited by the Landlord’s advocates in their submissions and the same is clearly distinguishable from the facts in this matter.

21. I therefore refuse to exercise discretion in favour of the Landlord and proceed to dismiss the application with costs to the tenant.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 5TH DAY OF NOVEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Nyanjiru for Landlord/Applicant

Miss Awour for the Respondent