Kirui & 2 others v Langat [2025] KEBPRT 226 (KLR)

Kirui & 2 others v Langat (Tribunal Case E068 of 2023) [2025] KEBPRT 226 (KLR) (Civ) (10 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 226 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E068 of 2023

N Wahome, Chair & Joyce Murigi, Member

April 10, 2025

Between

John Kipngetich arap Kirui & 2 others & 2 others & 2 others & 2 others & 2 others & 2 others & 2 others

Landlord

and

Geoffrey Kipkirui Langat

Tenant

Ruling

1. This Ruling pertains the Tenant/Applicant’s Application dated 13. 11. 2024. The same sought for orders that the orders of this court that were issued on the 15. 10. 2024 be discharged, varied and/or set aside and that there be stay of execution of the said orders pending the hearing and determination of this Application.

2. This court was obliged and it on the 15. 11. 2024 granted orders of stay and gave directions on the hearing of this Application. The Landlord/Respondent filed the grounds of Opposition dated 26. 11. 2024 and the Replying affidavit of the same date.

3. The Tenant further and with the leave of this court filed the Supplementary affidavit sworn on the 5. 12. 2024, the Affidavit of Andrew Kiplagat Cheruiyot an alleged Co-Landlord sworn on the 5. 12. 2024, the Affidavit of Jonathan Kipyegon Sigei also an alleged Co-Landlord also sworn on the 5. 12. 2024 and finally filed the submissions dated 5. 12. 2024.

4. On his part, the Landlord further filed the submissions dated 13. 1.2025 and the parties effectually closed their respective pleadings and submissions. From the record, the contestations by the parties is on the orders granted to the Landlord on the 15. 10. 2024. It is important to appreciate that before the impugned orders were granted, the Tenant/Applicant and Counsel had been absent from court on the 14. 12. 2023, when the Landlord’s Application was allowed.

5. The Tenant/Applicant was also absent from these proceedings on the 10. 6.2024, 9. 07. 2024, 23. 7.2024, 19. 8.2024, 18. 9.2024 and the 15. 10. 2024 when the impugned orders were granted. Before the grant of the said orders, this court had satisfied itself that both parties had been notified of that particular hearing date by the court.

6. Be that as it may, we note that the Tenant has filed a total of four Applications in this matter dated 18. 4.2024, 15. 5.2024, 11. 6.2024 and now 13. 11. 2024 but only the later has been effectively prosecuted which leaves a lot to be desired. We are of the view that the Tenant/Applicant and more so his Counsel could have in a more prudent manner conducted their part of the proceedings herein.

7. However, having perused the pleadings herein, we are of the view that quite weighty issues of law arise from these proceedings and which the Tenant/Applicant should be allowed to canvass for justice of this matter to be done and actually to be seen to be done. This is not to say that the Tenant and his Counsel were not aware of the developments in this matter.

8. They had access to the courts system and by the press of a button could have been able to tell the status of this case and more so of their many Applications pending in court. This they did not do but the call to do substantive justice dictates otherwise.

9. We do appreciate that the Landlord herein is not the only Landlord in relation to LR No Kericho/Chemoiben/30 pursuant to the lease agreement dated the 6. 01. 2022. There is also co-Landlords by the names of Stanley Kipkemoi Cheruiyot and Jonathan Kipyegon Sigei. It is not clear from the record as to why the two were left out of these proceedings.

10. Indeed, the Tenant has alluded to this in his Supplementary affidavit sworn on the 5th December 2024 and the submissions of the even date. There is also the Affidavit of Andrew Kiplagat Cheruiyot on behalf of the Estate of the late Zablon Komingoi Mateget dated 5. 12. 2024 and that of Jonathan Kipyegeon Sigei sworn on the even date on behalf of the Estate of the late Kipsigei Arap Korir.

11. Those Affidavits do not demonstrate consent to the Landlord to appear in court on behalf of their respective Estates but denounce that those Estates are owed any rent by the Tenant/Applicant.

12. To compound the issues herein even more, the Tenant/Applicant has in the Supplementary Affidavit filed annexure “GKL4” where the family of the Landlord/Respondent and in which he is the administrator thereof, have denounced him. From a casual look at the annexure, it speaks of lost confidence in the Respondent as the Administrator of the Estate of their Patriarch, the late Kibomet Munak.

13. In our view, this is a matter where from the evidence on record, the Applicant should be allowed to raise the otherwise very heavy issues of law in defending this matter. We are least convinced that the Tenant was not aware of these proceedings but the need to do substantive justice overrides the lethargy on the part of the Tenant.

14. Order 10 Rule 11 of the Civil Procedure Rules, 2010 provides that;-“Where Judgment has been entered under this order, the court may set aside or vary such Judgment and any consequential decree or order upon such terms as are just.”

15. This is a discretion that is wide and far reaching but which must be exercised judiciously and within the confines of the law. The case of; Mbogo & another v Shah [1968] 1 EA 93, laid down the principles on which orders of the court can be set aside. It held thus;-“Applying the principle that the court’s discretion to set aside an exparte 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 cause of justice, the motion should be refused.”

16. In this matter and from the evidence on record, we doubt that the Tenant intended to obstruct the cause of justice. Indeed, from the evidence availed in the Application dated 13. 11. 2024, it would be worthwhile to grant the Tenant and other Interested Parties an opportunity to be heard which shall also in essence be serving the cause of natural justice.

17. We are of the view that the family of the late Zablon Komingoi Mateget and the late Kipsigei Arap Korir required to be joined in these proceedings before any final determination could be made. This becomes even more necessary after their averments on oath that they were not owed any rent in arrears by the Tenant.

18. This court shall therefore in setting aside the impugned orders of 15. 10. 2024 be also directing that the representatives of the Estate of the late Zablon Komingoi Mateget and the late Kipsigei Arap Korir be joined in these proceedings. In this, we find reliance in Order 1 Rule 10 of the Civil Procedure Rules which provides that;-“Where a suit has been instituted in the name of the wrong persons as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.”

19. We would therefore allow the Application dated the 13. 11. 2024 and further direct that the Tenant’s items attached by M/S Hegeons Auctioneers be released to him forthwith. The auctioneers shall file their bill off costs to this court for assessment by the Deputy Registrar.

20. On the question of costs, we opine that the Tenant and Counsel have not demonstrated commitment to these proceedings. We would therefore invoke our discretion under Section 27 of the Civil Procedure Act and Section 12(1)(k) of Cap 301 and award costs to the Landlord.

21. In the final analysis, the orders that commend to us are the following;-a.That the Application dated 13. 11. 2024 is allowed and M/S Hegeons Auctioneers shall immediately and unconditionally release all the items attached and collected from the Tenant.b.That the Auctioneers shall file their bill of costs for assessment by the Deputy Registrar of this court.c.That the representatives of the Estate of the late Zablon Komingoi Mateget and the late Kipsigei Arap Korir shall be joined in these proceedings as the 2nd and 3rd Landlords respectively.d.That the Tenant and the 2nd and 3rd Landlords shall file and serve their respective responses to the 1st Landlord’s Reference and Application in thirty (30) days of the date hereof.e.That the Tenant shall pay the Landlord costs of this Application assessed at Kshs 20,000/= in fourteen (14) days of the date hereof and in default, the orders of 15. 10. 2024 shall stand reinstated.f.That this matter shall be set down on priority for case management on the hearing and final disposal.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF APRIL, 2025. HON. NDEGWA WAHOME, MBS,PANERL CHAIRPERSON,BUSINESS PREMISES RENT TRIBUNAL.ANDHON. JOYCE MURIGI,MEMBER,BUSINESS PREMISES RENT TRIBUNAL.Court: Mention for case management on 15. 5.2025. The court to notify the parties on the Ruling and on the next date to court.HON. NDEGWA WAHOME, MBS,PANERL CHAIRPERSON,BUSINESS PREMISES RENT TRIBUNAL.