Mbaya v Onyoki [2022] KEBPRT 836 (KLR)

Mbaya v Onyoki (Tribunal Case E381 of 2022) [2022] KEBPRT 836 (KLR) (18 November 2022) (Ruling)

Neutral citation: [2022] KEBPRT 836 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E381 of 2022

Gakuhi Chege, Vice Chair

November 18, 2022

Between

Boniface M Mbaya

Applicant

and

Isaiya Onyoki

Respondent

Ruling

1. The applicant herein moved this Tribunal by a reference dated May 4, 2022 pursuant to section 12(4) of cap 301, Laws of Kenya complaining that the landlord had unlawfully denied him access to toilets, water, disconnected electricity and had threatened to evict him contrary to the Act.

2. He also filed a motion of even date seeking restraining orders which were granted on interim basis on May 5, 2022 pending hearing inter-partes on May 19, 2022.

3. On May 19, 2022, the matter came up before the tribunal and an order allowing the tenant free access to load tokens of electricity and continue paying rent of kshs 12,000/- per month was granted. The tenant was allowed access to water and toilet facilities and the case was marked as settled on those terms.

4. On May 23, 2022, the applicant sought that the orders granted on May 5, 2022 and May 19, 2022 be executed through supervision of the OCS, Mihango police station which application was allowed on the same day.

5. On June 8, 2022, the applicant filed yet another application of even date seeking that the respondent be ordered to pay costs of kshs 20,000/- in this matter stating that he had incurred the said costs in filing of the matter, serving, hiring police transport and loss of business for 56 days which was to be assessed by the court.

6. This tribunal directed the tenant to file A party and party bill of costs for taxation in the normal manner and attach receipts or payment vouchers for all the costs incurred in the matter. The application dated June 8, 2022 was struck out for being unprocedural.

7. On June 21, 2022, the tenant filed his bill of costs for kshs 17,160/- without attaching any receipts for expenses claimed therein.

8. On October 26, 2022, parties were directed to file written submissions on the bill of costs but only the respondent complied.

9. I am now required to determine whether to allow or dismiss the said bill of costs.

10. In considering the matter before me, I am required to exercise judicial discretion under section 12(1) (k) of cap 301, Laws of Kenya which provides as follows:-“(k)to award costs in respect of references made to it, which costs may be exemplary costs where the Tribunal is satisfied that a reference to it is frivolous or vexatious”.

11. On May 19, 2022, this matter was marked as settled by Hon A Muma, vice chair and no order of costs was made in favour of the tenant. The said order has not been varied, reviewed or set aside by the tribunal to date neither is there any application to that effect pending.

12. Section 7 of the Civil Procedure Act under explanation no 5 states as follows:-“(5)Any relief claimed in a suit, which is not expressly granted by the decree shall for the purposes of this section be deemed to have been refused”.

13. In his reference and application dated May 4, 2022, the applicant had prayed for costs of the case. However, the same were not expressly granted and are therefore deemed to have been refused under the foregoing provision of the law. I cannot sit on appeal against the said order of my brother as our jurisdiction is concurrent.

14. Secondly, the applicant did not comply with the orders of June 8, 2022 by filing payment receipts and vouchers for all the costs alleged to have been incurred. No receipts or vouchers have been produced by the applicant.

15. Rule 74 of the Advocates (Renumeration) order provides as follows:-“74. Subject to paragraph 74A, receipts or vouchers for all disbursements charged in a bill of costs shall be produced on taxation if required by the taxing officers”.

16. Having been ordered to produce the said receipts and vouchers under the foregoing provision and having failed to do so, the applicant is disentitled to the costs tabulated in his bill of costs dated June 21, 2022.

17. Consequently the said bill of costs is hereby dismissed with no orders as to costs and this file is consequently ordered closed.It is so ordered.

RULING DATED,SIGNED & DELIVERED THIS 18TH DAY OF NOVEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling delivered in the presence of:Gioche for the landlordTenant in person