Jane Kiseli v Anderson Kirimi Mbaka [2021] KEBPRT 117 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 03 OF 2019 (MACHAKOS) CONSOLIDATED WITH CASE NO. 1347 OF 2019 (NAIROBI)

JANE KISELI                                                     TENANT/APPLICANT

VERSUS

ANDERSON KIRIMI MBAKA              LANDLORD/RESPONDENT

RULING

Parties and Their Representatives

1. The Tenant/Applicant, JANE KISELI rented space in the suit premises (hereinafter referred to as the “Tenant”)

2. The Firm of Frank Karanja & Co. Advocates represent the Tenant/Applicant. (f.karanjalaw@gmail.com)

3. The Landlord/Respondent, ANDERSON MBAKA (hereinafter referred to as the “Landlord”) is the owner and Landlord of the premises rented out to the Tenant/Applicant.

4. The Firm of Kivuva Omuga & Co. Advocates represent the Landlord (info@kariyukikayika.co.ke).

The Background of the Dispute

5. On 11th January 2019 the Tribunal issued ex-parte orders in Tribunal Case No. 03 of 2019 Machakos requiring that the Tenant pay outstanding arrears of Kshs. 286,000 owed to the Landlord and in default of which the Landlord was at liberty to levy distress and auction the Tenant’s properties.

6. Subsequently, the Tenant filed the current application dated 18th June 2021 seeking to set aside/vary/review the orders issued on 11th January 2019 on the basis that when the orders were issued they had not been served with the notice of motion application and as a result could not avail themselves in court.

7. On 6th July 2021 the Tribunal gave orders that the Tribunal consolidate Tribunal case No. 1347 of 2019 and Case No. 03 of 2019 and that the tenant serve for inter-partieshearing on 26th July 2021.

8. On 4th August 2021,the Tribunal ordered that rent inspection to be conducted to know who is in the premise and the situation on the ground considering the Tenant claimed that the shop was locked.

Jurisdiction

9. The jurisdiction of this Tribunal is in dispute.

Tenant’s Claim

10. The Tenant filed a notice of motion application under certificate of urgency and supporting affidavit dated 18th June 2021 which pleadings form the basis of this claim.

Landlord’s Claim

11. The Respondent filed a notice of motion application and a supporting affidavit dated 3rd August 2021.

12. Parties filed written submissions which I have looked at.

List of Issues for Determination

It is the contention of this Tribunal that the issue raised for determination is as follows;

a) Whether the Tribunal has jurisdiction to grant the orders sought by the Applicant?

Analysis and Determination

Whether the Tribunal has jurisdiction to grant the orders sought by the Applicant

13. It is clear that in exercising the powers conferred under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, this Honourable Court must restrict itself to the powers conferred to it under Section 12 of the said Act.

12. A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—

(i)to vary or rescind any order made by the Tribunal under the provisions of this Act;

14. This power of the Tribunal was elaborated by the High Court in the case of Spares Corner (K) Ltd. Vs Maram Noormohamed, Abdul Hamid Noormohamed, Ismael Noormohamed[2003] eKLR,in which the  Tenant sought for review of a decision issued by this Tribunal, after the Tenant had been evicted from the suit property and the Tenancy relationship between the parties severed. The High Court in affirming the power of this Tribunal to vary or rescind its orders as provided under Section 12 (i) of the Act, and in remitting the matter back to the Tribunal for consideration on merit despite the execution of earlier orders stated as follows:

“It is difficult to see under what circumstances a Tribunal would be asked to vary or rescind any order made under the Act if it cannot reconsider its own orders dismissing a reference and ordering a tenant’s eviction. The Act provides for it and it is in any event a fundamental principle of Justice.”

15. Based on the foregoing, it is therefore clear that this Honourable Court has the power to review or vary or rescind earlier orders issued by it. Subsequently, this raises the question on what grounds or under what circumstances is this Honourable Court required to consider an application to vary or rescind its earlier orders.

16. The grounds in which a court 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 madeor 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.”

17. Therefore, in order for the Tenant herein to succeed in this application, he must satisfy either of the conditions stipulated in Order 45 Rule 1 of the Civil Procedure Rules which 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; and

c) Any other sufficient reason.

18. From the above conditions the Tribunal needs to consider whether from the Tenant’s application the above grounds have been met.

19. From the orders given on 11th January 2019, it was the contention of the Tribunal that it was necessary to find out the status of the premises and establish who was in occupation of the same. From the inspection, the report provides that the Tenant’s goods were not in the premises and the Landlord had locked the same premises and it is currently being used as a store by another occupant.

20. The Tenant had alleged that their colleague had previously seen the goods they are claiming remained in possession of the Landlord in the premises but they have not attached sufficient evidence that this Tribunal can rely on as proof of the same.

21. The Tribunal has observed that from both parties’ submissions the jurisdiction of the Tribunal is in question owing to the findings given in the rent inspection. Both parties are in agreement that the premises are no longer in occupation by the Tenant and that the Tenant’s goods are not in the premises.

22. It is therefore the contention of this Tribunal that in as much as it does have power to vary and or set aside its orders the same cannot be done in vain. This Tribunal has been robbed off its jurisdiction to consider the Tenant’s application owing to the fact that the tenancy relationship between the Landlord and the Tenant no longer exists.

23. Based on the foregoing the Tribunal must down its tools. I proceed to make the following orders

a) The Tenant’s notice of motion Application dated18th June 2021is hereby dismissed.

b) Landlord at liberty to take possession of the premises and let them out to someone else.

c) Each party to bear their own costs.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon A. Muma this 3rdday ofDecember, 2021 in the presence of Wafulaholding brief forKaranjaandKuriafor theLandlady.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL