Mwanzumbi v Mutuma [2024] KEBPRT 1511 (KLR)

Mwanzumbi v Mutuma (Tribunal Case E148 of 2023) [2024] KEBPRT 1511 (KLR) (28 February 2024) (Ruling)

Neutral citation: [2024] KEBPRT 1511 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E148 of 2023

N Wahome, Member

February 28, 2024

Between

Robert Mwazumbi

Landlord

and

Ambrose Murungi Mutuma

Tenant

Ruling

1. This Ruling pertains to the Notice of motion application by the Tenant dated 28th November 2023. The same was triggered by the orders made by this tribunal on the 16th November 2023 to the effect that:-“The Applicant is allowed to amend his notice of termination and any other pleading if necessary on the dates thereof to read 31/8/2023 and serve the same within 7 days”.

2. The grievances by the Tenant are that:-i.The Landlord had not filed a formal application to amend the notice of termination and that the Tenant was not allowed an opportunity to have a say in the mater.ii.Tenant had raised a preliminary objection dated 19th October 2023 and directions on hearing of the same taken and the leave to amend granted to the landlord had in essence defeated the same.iii.This tribunal lacked jurisdiction to grant the orders of amendment as it did not enjoy such powers as donated to other courts by the Civil Procedure Act.iv.The Tenant further relied on the following decided cases in support of his Application:-a.Crang- vs- Kanseen (1943) All ER 108 and 113 on the principle that the tenant did not require to appeal the impugned decision of 16/11/2023 as this tribunal had the powers to revisit the issue.b.Kamau – vs- Muite and Others (1967) EA 179 and 181 where notices of termination which were not compliant with the law were determined as not enforceable to deliver vacant possession to a landlord.c.Saheb – vs- Hassanally (1984) KLR, 186 where it was ruled that a notice of termination required to be served on the Tenant/Landlord or an adult member of their household.d.Mitchell vs- Cheyo and others to elaborate on the principle that amendment or in that case the extension of time could not be allowed after preliminary objection had been raised which was meant to defeat the same.

3. The Applicant therefore sought that the orders made on the 16th November 2023 be set aside. The original and amended notice of termination of tenancy be struck out for being incompetent and fatally defective. He also sought for costs of both the reference and the application.

4. On his part, the landlord opposed the application by filling the Replying Affidavit sworn by himself on the 1/2/2024. It is his contention that:-i.This tribunal had the jurisdiction and powers to grant the orders of 16/11/2023. ii.The orders granted on the 16/11/2023 are not in anyway prejudicial to the Tenant who will have an opportunity to defend the amended notice of termination.iii.What was allowed to be corrected was a mere typographical error as borne out by the body of the notice and the landlord’s statement.iv.The Tenant was never asked to move from the demised premises before the expiry of 60 days after issue of the notice.v.The landlord further put reliance on Article 159 of the constitution and on Halsbury’s Laws of England, 4th Edn Vol. 37 paragraph 14.

5. I have perused all the materials placed before me including the parties respective submissions and am of the view that the issues for determination in this matter are the following:-A.Whether this court had jurisdiction to allow for the amendment of the notice of termination of tenancy dated 22/5/2023. B.Whether the Tenants application dated 28/11/2023 is merited.C.Who should bear the costs of this application.

Issue No. A. Whether this court had jurisdiction to allow for the amendment of the Notice of termination of tenancy dated the 22/5/2023. 6. From the outset the said notice was in complete compliance with the provisions of Section 4(2) of the Act and Regulation 4(1) of the Regulations thereof except that there were contradictions on the face of the notice. Section 4(2) of the Act provides that:-“A Landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the Tenant, any term or condition in, or right or service enjoyed by the under such a tenancy shall give notice in that behalf to the tenant in the prescribed form”.

7. The regulation 4 (1) thereof provides that:-“A notice under Section 4(2) of the Act by a landlord shall be in form A1 in the schedule to these Regulations”.In this matter, the landlord in issuing the notice of termination dated 22/5/2023 indicated that the termination would take effect on the 31/5/2023. Barely 10 days of the issuance of the notice. However in the same termination notice at clause (4) it stated as follows:-“I require you within two (2) months after receipt of this notice to notify me in writing whether or not you agree to comply with the notice as from that date”.

8. It is apparent from the face of the notice that there was an error, a typograhed error so to say. This is fortified by the fact that the landlord did not make any move to reclaim the demised premises on the lapse of 31/5/2023. This therefore takes me to Section 12(4) of the Act which provides that:-“Among the powers of the Tribunal in relation to its area of jurisdiction is the power to do all things which it is required or empowered to do by or under the provisions of this Act”.

9. The jurisdiction of this tribunal on all matters pertaining to controlled tenancies has not been disputed. It is my view that an amendment in the process of adjudicating on issues within the embrace of a controlled tenancy are in the jurisdiction of this Tribunal. The jurisdiction of this tribunal is not fragmented when it comes to addressing issues concerning controlled tenancies.

10. I do not accept the invitation by the counsel for the Tenant to find that this court has jurisdiction to deal with some issues in a controlled tenancy and not others. Once jurisdiction is established, this court has the authority to run the whole course of adjudicating over such matters.

11. Am further of the view that for good order in proceedings and in the larger and expedient service of justice to the parties, order 8 Rule 5 (1) comes into play. The same provides that:-“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error of its own motion or on the application of any party order any document to be amended in such manner as it directs and or such terms as to costs or otherwise as are just”.

12. I do not find any conflict between this provision of the civil procedure Act and the supremacy of Cap. 301 as proclaimed under section 4(1) of Cap. 301. In recognition of the importance of service of qualitative and expedient justice to the people, Article 159 of the constitution of Kenya 2010 provideds that:-i.Judicial authority is derived from the people and vests in and shall be exercised by the courts and Tribunals established by or under this Constitution.ii.In exercising judicial authority, the courts and Tribunals shall be guided by the following principles:-a.Justice shall not be delayed,b.Justice shall be administered without undue regard to procedural technicalities.It is therefore my view from the above analysis and findings that this Tribunal was properly and lawfully seized with the requisite authority to make the orders that it made on the 16/11/2023.

Issued No. B- Whether the tenants applicaton dated 28/11/2023 is merited 13. Section 12(4) (1) has granted this Tribunals powers to:-“Vary or rescind any order made by the Tribunal under the provision of this Act”.I am however not convinced that this is a qualified case for such orders. As indicated earlier, from a casual look at the amended notice of termination of tenancy, it is clear that the date of 31/5/2023 was purely a typographical error when looked against the entire body of the said notice.

14. The landlord did not take any steps against the Tenant before he expiry of 60 days and there is no evidence presented that he declined to receive rent with effect from the 31/5/2023. Looking at the totality of this matter, no prejudice or injustice would be occasioned to the Tenant who has a right to defend the notice of termination as amended on the 16/11/2023. I have looked at the authorities relied upon by the counsel for the Tenant and find that same are distinct from the circumstances of the matter at hand.

15. In the case of Craing – vs- Kanseean and the case of Karmali vs. Muite and others, orders sought to be enforced were illegal orders. In the present case, a finding has been made to the effect that the orders of 16/11/2023 were legitimate as they were anchored in the law and constitution. In the case of Mitchell – vs- Cheyo and Others. The court addressed the question where a single judge vested on himself the jurisdiction of a full bench of the court. This is not the reality obtaining here.

16. Am therefore of the view that there is no foundation laid to allow me interrupt the orders made on the 16/11/2023 or to strick out the notice of termination of tenancy dated 16/11/2023. The application dated 28/11/2023 is accordingly dismissed.

Issued No. C- Who should bear the costs of the application 17. The proviso to Section 27 of the Civil Procedure Act provides that:-“Provided that the costs of any action, cause or any other matter or issue shall follow the event unless the court or judge shall for good reason or cause order”.I believe that there is good cause and justification to order that the costs of this application abide the outcome of the reference herein and dated the 30/5/2023. Such cause is that the application was occasioned and/or triggered by an error committed by the landlord in the notice of termination dated 22/5/2023 and amended on the 16th November 2023.

18. In conclusion the orders that commend to me are the following:-1. That the application dated 28/11/2023 is dismissed and the costs thereof shall abide the outcome of the reference dated 30th May 2023. 2.That the landlord shall file a response to the reference in 7 days of the date hereof and the Tenant will have 7 days on service to file any supplementary pleadings and/or documents.3. That both parties shall comply with order 11 of the Civil Procedure Rules within 14 days of order No. 2 herein above and exchange their respective documents.4. That the reference dated 30th May 2023 shall be heard on the 4/4/2024. Those are the orders of the court.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF FEBRUARY, 2024. HON. NDEGWA WAHOME MBS - MEMBERBUSINESS PREMISES RENT TRIBUNAL