Jitash Doongarsi Jamnadas t/a Bhatia Radio House v Ahmed Jaffer [2021] KEBPRT 291 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 150 OF 2018 (MOMBASA)

JITASH DOONGARSI JAMNADAS T/A

BHATIA RADIO HOUSE...................................TENANT

VERSUS

AHMED JAFFER........................................LANDLORD

RULING

1. The Landlord’s application dated 27th November 2019 seeks the following orders;

a. Spent

b. That there be a stay of the orders made on 20th November 2019 pending the hearing and determination of this application inter partes.

c. That the orders made on 20th November 2019be set aside and the Landlord’s application dated 9th October 2019 be reinstated for hearing and determination on merits.

d. Costs.

2. The grounds upon which the application is brought and the affidavit in support thereof may be summarized as follows;

a. That on 20th November 2019, the Applicant’s application dated 9th October 2019 was dismissed for want of prosecution.

b. That on the material day, counsel for the Landlord, Mr Mutisya was sick.

c. That Mr Mutisya had instructed Mr E.K. Mutua to proceed with the matter on his behalf but Mr Mutua was held in a traffic jam and by the time he arrived in court, the matter had already been called out and dismissed.

d. That the above is a mistake of counsel.

e. That the Landlord stands to suffer substantial and irreparable loss.

3. The Tenant, as far as I can peruse the court records has not filed any replies to the Landlord’s application dated 27th November neither has the Tenant filed any submissions in opposition to the said application.

4. On 12th November 2018, the Tribunal issued injunctive orders against the Landlord pending the hearing of the case, the Landlord was also compelled to accept rent at a set rate of Kshs 10,000/- per month pending the hearing and determination of the case and the Tenant ordered to pay the Tenant the costs assessed at Kshs 25,000/-.  The Landlord was absent on the date that these orders were issued.

5. It is the above orders which the Landlord sought to set aside by his application dated9th October 2019and which application was dismissed on 20th November 2019.

6. The instant application now seeks a setting aside of the orders issued on 20th November 2019 and a reinstatement of the application dated 9th October 2019 for hearing.

7. The reasons given for the absence of counsel for the Landlord have been set out in the affidavit of Stephen M. Mutisya Advocate.

8. Mr Mutisya has stated that he was sick on the material day and therefore instructed Mr E.K. Mutua to hold his brief and proceed with the matter.

9. Mr Mutua, it has been stated, did not make it to court due to a traffic jam.  The Applicant has not provided any evidence that his counsel was unwell on the material day neither has Mr E.K. Mutua advocate sworn any affidavit to confirm that indeed he had instructions in the matter, that he was ready to proceed and that his non-appearance in court was due to a traffic jam.

10. These matters though have not been contested by the Tenant/Respondent and in the wider interests of justice, I am willing to believe the facts as set out in the affidavit of the Landlord’s counsel.

11. I will in the premises make the following orders;

a. That the orders made by the Tribunal on 20th November 2019 be and are hereby set aside.

b. That the Landlord’s application dated 9th October 2019 be fixed for hearing on a priority basis.

c. The orders issued by the Tribunal on 18th October 2018 to remain in force, pending the hearing and determination of the Landlord’s application dated9th October, 2019.

d. Costs in the cause.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered by Hon Cyprian Mugambi Nguthari this17thday of September, 2021 in the presence of Mr Mutisyafor theLandlordand in the absence of theCounselfor theTenant.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL