Kinyozi & another v Stella Nyamu t/a Metroserve Investment Company Ltd & another [2022] KEBPRT 850 (KLR)

Kinyozi & another v Stella Nyamu t/a Metroserve Investment Company Ltd & another (Tribunal Case E219 of 2021) [2022] KEBPRT 850 (KLR) (Civ) (13 December 2022) (Ruling)

Neutral citation: [2022] KEBPRT 850 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E219 of 2021

Gakuhi Chege, Vice Chair

December 13, 2022

Between

Skylux Kinyozi

1st Applicant

Jikaze Tailoring & Suit Repairs

2nd Applicant

and

Stella Nyamu t/a Metroserve Investment Company Ltd

1st Respondent

Ebpny Estates Limited

2nd Respondent

Ruling

1. Before me is an application dated June 17, 2022 in which the tenants seek for setting aside and/or variation of the orders issued on June 6, 2022.

2. On the June 6, 2022, this tribunal dismissed the tenants’ application dated June 21, 2022 for want of prosecution. The said application had been directed to be disposed of by way of written submissions which the tenants failed to file. The interim orders were consequently discharged.

3. According to the tenants, their advocate on record was never served with a mention notice to attend court on June 6, 2022 and only learnt of the dismissal order after perusing the court file on June 10, 2022.

4. The tenants therefore contend that unless the orders issued are set aside, they will suffer great prejudice as they would be condemned unheard.

5. It is therefore the tenants’ case that this court has wide and unfettered discretion to set aside the impugned orders to avoid a miscarriage of justice.

6. The application is opposed through the replying affidavits of Percy Kibe sworn on August 31, 2022 on behalf of the 2nd respondent and Stella Nyamu/1st respondent sworn on September 19, 2022.

7. According to the 1st respondent, the tenants failed on various occasions to comply with directions to file submissions and as such were not keen on prosecuting their case as they enjoyed interim orders.

8. The tenants are further accused of occupying the suit premises without paying any rent and no reasonable grounds are disclosed for setting aside the dismissal orders.

9. The 2nd respondent deposes that the affidavit sworn by David Muchiri Muthua on June 17, 2022 on behalf of the tenants is incompetent as he is not the proprietor of the 1st tenant as evidenced by annexure ‘PK-1’. As such the application is a non-starter, baseless and devoid of merit.

10. The applicants are accused of employing delaying tactics to stall the hearing of the matter to avoid payment of rent while they enjoyed interim orders of injunction. As such the orders sought to be set aside were regularly issued.

11. The application was on August 19, 2022 directed to be disposed of by way of written submissions but a close check on the CTS filing portal revealed that none of the two parties complied.

12. In the circumstances, the application dated June 17, 2022 suffers the same fate as the one dated June 21, 2022 and is dismissed for want of prosecution with costs to the respondents.

13. Although the tenants claim not to have been served with notice of mention scheduled on June 6, 2022, the CTS portal sent SMS messages to the parties automatically upon updating the mention date on the system. In any event, they had not complied with directions to file submissions despite several previous mentions having been conducted in the matter to allow them to do so.

14. In making the dismissal order herein, I find that the tenants have miserably failed to bring themselves within the principles considered in applications for setting aside ex parte orders espoused in the case of Shah v Mbogo & another [1967] EA 117 at page 123 where it was held as follows:-“I have carefully considered in relation to the present application, the principles governing the exercise of the court’s discretion to set aside a judgment obtained ex-parte. This 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 a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice”.

15. I find and hold that the tenants’ conduct in this matter is aimed at obstructing the course of justice and their failure to comply with directions to file submissions is not as a result of accident, inadvertence or excusable mistake or error. They are seeking to evade payment of rent as contended by the respondents and I therefore exercise my discretion to dismiss the complaint under section 12(4) of cap 301, laws of Kenya with costs.

16. The costs of the respondents are assessed at Kshs 25,000/- all inclusive.

17. In conclusion, I make the following final orders:-(a)The tenants’ application dated June 17, 2022 is hereby dismissed with costs.(b)The tenant’s complaint dated June 21, 2021 is dismissed under section 12(4) of cap 301, laws of Kenya with costs.(c)The tenants shall pay Kshs 25,000/- to the respondents as costs of the case.It is so ordered.

RULING DATED, SIGNED & DELIVERED THIS 13TH DAY OF DECEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Sigoma for the 2nd respondentNo appearance for the applicants and 1st respondent