Kinyua v Kinyua [2025] KEBPRT 238 (KLR)

Kinyua v Kinyua (Tribunal Case E012 of 2024) [2025] KEBPRT 238 (KLR) (Civ) (28 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 238 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E012 of 2024

P Kitur, Member

March 28, 2025

Between

Nazareno Kinyua

Landlord

and

Julius Kinyua

Tenant

Ruling

A. Parties. 1. The landlord is the registered owner of the PLOT NO. DSRXX situated at Siakago town in which the Applicant operates a hotel by the name of Jakdiss Food Palace (hereinafter referred to as ‘the suit premises’).

2. The firm of Rose W. Njeru & Company Advocates represents the Landlord/Respondents.

3. The Tenant operates the restaurant business within the suit premises.

4. The firm of Dennis Kariuki & Company Advocates represents the Tenant/Applicant.

B. The Dispute Background. 5. The Landlord approached this Honourable Tribunal on 13th February 2024 by way of a Reference and an Application filed under a Certificate of Urgency of the same date. This was necessitated by the Tenant’s act of refusal to pay rent arrears and vacate the suit premise despite being served with notice of termination of lease.

6. The Landlord, in his application, prayed inter alia, that he be granted leave to evict the tenant from the suit premise and the O.C.S Siakago police station to provide security to facilitate peaceful eviction.

7. Upon considering the Reference and Application dated 13th February 2024, this Honourable Tribunal, on 20th February 2024, issued interim orders directing the respondent to serve the applicant hearing notice.

8. An affidavit of service was duly served on the tenant and as such on 20th March 2024, both parties were present in court and the tenant was granted 21 days to file response however he did not comply even after being served with the hearing notice scheduling the matter for hearing on 8th May 2024.

9. This honourable tribunal issued orders on 31st July 2024, granting the Landlord the orders sought in the application dated 13th February 2024, which he proceeded to issued the tenant eviction orders on 11th September 2024.

10. On 13th September 2024, the Tenant filed an Application under Certificate of Urgency, seeking orders inter alia, that the tribunal to stay the execution and set aside the orders dated 31st July 2024 pending hearing and determination of the application. Moreover, be granted leave to file their response out of time. This is in support of Replying affidavit on allegations that he has been paying rent to the respondent’s wife as instructed by her.

11. Consequently, on 16th September 2024, this Honourable tribunal issued orders for stay of execution pending hearing and determination of the application inter-parties.

12. Conversely, the Landlord filed Replying affidavit dated 26th October 2024, asserting that the Tenant has not paid any rent nor filed response as at 8th May 2024. He further contends that he instructed his wife and agent to collect rent on his behalf since he was ill but the applicant still failed to remit rent as such the arrears accumulated to ksh.191,000 in the year 2023.

13. Moreover, the Landlord’s wife filed replying affidavit on the same date, in support of the respondent’s allegations. She further asserted that the Applicant is in arrears despite multiple reminders.

14. As such the tribunal on 5th February 2025, gave directions for the parties to file their submissions and they complied.

15. Consequently, this matter is coming up for a Ruling on the Application dated 13th September 2024, for orders inter alia;I.That this Honourable Tribunal be pleased to stay the execution of the orders dated 31st July 2024 pending hearing and determination of this application.II.That this Honourable Tribunal be pleased to set aside the orders dated 31st July 2024. III.That the Tenant/Applicant be granted leave to file response out of time and/or the draft Response Annexed hereto be deemed to have been duly filed upon payment of the requisite court fees.IV.That cost be in cause.

C. List Of Issues For Determination. 16. Upon a careful consideration of the Application and submissions filed by the parties, the following issues arise for determination:i.Whether the Tribunal has authority to vary and/or set aside its ex-parte orders dated 31st July 2024. ii.Whether the Applicant/Tenant be granted leave to file his response out of time

D. Analysis And Findings. 17. In determining whether the Tribunal has the authority to vary and/or set aside its ex-parte orders, I am guided by Section 12 of the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301, Laws of Kenya (hereinafter referred to as "the Act"), which confers specific powers upon the Tribunal. The relevant provision explicitly states that the Tribunal has the power:i.To vary or rescind any order made by the Tribunal under the provisions of this Act.

18. This provision places upon the Tribunal the obligation to determine, on one hand, whether the Applicant’s prayer is a matter of right and, on the other, whether it is an issue of discretion to vary or rescind the orders previously issued in accordance with the Act.

19. To begin with, in assessing whether the Applicant is entitled to relief as a matter of right, it is imperative to establish whether he was duly served with a hearing notice to appear before the Tribunal.

20. In this regard, I find guidance in the decision of the Court of Appeal in James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR, which underscored the fundamental right to be heard before an adverse decision is entered against a party. The Court held as follows:“…In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion... The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”

21. From the evidence presented before the Tribunal, it is undisputed that on 20th March 2024, when the Applicant was present in court, he was granted 21 days to file a response, and the matter was scheduled for 11th April 2024. However, he failed to appear and did not file any response. The hearing was subsequently adjourned to 8th May 2024, and the Applicant was duly served, as evidenced by an affidavit of service dated 25th April 2024. Despite this, he neither attended court nor filed a response. Consequently, the Landlord’s application was allowed, and the file was closed.

22. It was only upon being served with the Tribunal’s orders on 11th September 2024 that the Applicant suddenly sprang into action and filed the present application.

23. Given the foregoing, it is evident that the Applicant was duly served, and thus, he does not meet the threshold for setting aside the Tribunal’s previous orders as a matter of right.

24. Having established that the Applicant does not have an automatic right to have the orders set aside, I now turn to the question of whether the Tribunal can exercise its discretion in his favor.

25. The principles guiding the exercise of discretion in setting aside ex-parte judgments were aptly laid down in Patel v E.A Cargo Handling Services Ltd [1974] EA 75 at 76, where Duffus P. held:“…the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits.”

26. Further emphasis is drawn from the decision in Shah v Mbogo & Another [1967] EA 116, where the Court held:“…the court’s discretion to set aside a judgment is intended to be exercised to avoid injustice or hardship, resulting from accident, inadvertence, or excusable mistake or error but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”

27. The legal threshold for exercising discretion to set aside an ex-parte order is whether the Applicant has demonstrated a sufficient cause to warrant such relief. In Wachira Karani v Bildad Wachira [2016] eKLR, Mativo J. stated:“Sufficient cause is a question of fact, and the court has to exercise its discretion in the varied and special circumstances of each case. There cannot be a straight-jacket formula of universal application.”

28. In an attempt to justify his failure to participate in the proceedings, the Applicant asserts that he assumed the Tribunal would conduct its proceedings in open court since the first mention was held in open court. Further, in his replying affidavit dated 13th September 2024, he alleges that he encountered challenges in accessing the virtual court platform.

29. However, this justification is entirely unconvincing. The Applicant had multiple opportunities between 11th April 2024 and 31st July 2024 to redeem himself. He neither followed up on his case nor sought assistance regarding virtual proceedings. A litigant cannot afford to be indifferent to his own case and later claim ignorance as an excuse for inaction.

30. It is a well-established principle that equity aids the vigilant and not the indolent. It has also been held that delay defeats equity. In Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR, the Court cited Snell’s Equity by John McGhee Q.C. (31st Edition) at page 99, which states:“The court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence; where these are lacking, the court is passive and does nothing.”

31. From the foregoing, it is abundantly clear that the Tenant was afforded ample opportunities to respond to the Landlord’s application and the reference, yet he persistently failed to do so. His indolence in this matter is, therefore, inexcusable.

31. I find persuasive the sentiments of Gikonyo J. in Fran Investment Ltd v G4S Security Services Ltd [2015] eKLR, where he held:“It is well understood in the legal reality that dismissal of a suit without hearing it on merit is such a draconian act. But that reality should be checked against yet another equally important constitutional demand that cases should be disposed of expeditiously, which is founded upon the old adage and now an express constitutional principle under Article 159 of the Constitution, that justice delayed is justice denied. Here, I am reminded that justice is to all the parties and not only the Plaintiff.”

33. Consequently, I find no compelling grounds to justify granting a stay of the orders made on 31st July 2024. Stay orders serve the cause of justice and should not be used to obstruct it.

34. Furthermore, On the second issue, I reiterate that, in the absence of a response to the Reference and Notice of Motion dated 13th February 2024, there is no logical purpose in granting leave to the Tenant at this juncture. If the Applicant had any meaningful response to the said applications, he had ample time to file it.

35. The Applicant has not demonstrated any sufficient reason for failing to file a response, I therefore find the Application dated 13th September 2024 ripe for dismissal as reopening the proceedings at this stage would serve no meaningful purpose.

E. Orders. 36. In light of the foregoing analysis, I find it just and make the following orders:i.The Application dated 13th September 2024 is hereby dismissed for lack of merit.ii.For avoidance of doubt, the Orders issued on 8th May 2024 shall remain in force and any Orders granted subsequently stand discharged.iii.Costs are awarded to the Landlord assessed at Kshs. 20,000/=.iv.The file is marked as closed.

HON P. KITURMEMBERBUSINESS PREMISES RENT TRIBUNAL