Ndambiri t/a AN Ndambiri & Company Advocates v Kenya Conference of Catholic Bishop & 2 others [2025] KEBPRT 183 (KLR)

Ndambiri t/a AN Ndambiri & Company Advocates v Kenya Conference of Catholic Bishop & 2 others (Tribunal Case E1034 of 2023) [2025] KEBPRT 183 (KLR) (21 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 183 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1034 of 2023

CN Mugambi, Chair

February 21, 2025

Between

Alfred Njeru Ndambiri t/a AN Ndambiri & Company Advocates

Tenant

and

Kenya Conference of Catholic Bishop

1st Respondent

Regent Management Limited

2nd Respondent

Garama Investment Auctioneers

3rd Respondent

Ruling

1. The Tenant’s Application dated 14. 10. 2024 seeks orders that the Tenant’s case be re-opened and the Tenant be allowed to adduce new and additional evidence, that the Tenant be allowed to file a new list of documents and that the Respondents be at liberty to cross examine the Tenant’s witness on the new and additional evidence.

The Tenant’s depositions 2. The Tenant in his Affidavit sworn on 14. 10. 2024 has confirmed that both parties in this case have testified and closed their respective cases and this matter was only pending the filing of submissions by the parties.

3. The Tenant has deponed that the evidence that he seeks to adduce was not within his knowledge and/or could not be produced at the time the matter herein was heard and relates to the rent payable between 2016 and July 2020 as shown in the documents annexed to his affidavit.

4. It is the Tenant’s deposition that the evidence he seeks to adduce is not voluminous, is relevant and that in any case, the Respondents will have the opportunity to cross examine on the said evidence.

The Respondent’s depositions 5. The 1st Respondent through an affidavit sworn by Ms. Aurephena Wanjala, has deponed that the Applicant waived his rights to present further evidence at the time of filing the suit and further that the Application is an attempt to rectify evidentiary gaps contrary to the principles of fairness and the administration of justice.

6. The Respondent has further deponed that the Applicant is unprocedurally seeking to re-open its case and the delay in seeking the orders herein is excessive and has not been explained.

7. It is also deponed that the impugned evidence by the Tenant predates this case and was always in the possession of the Tenant, and further the witness sought to be recalled has been substantially been examined.

8. It is the deposition of the Respondent that the Tenant has not demonstrated what prejudice he stands to suffer if the evidence sought to be adduced is not admitted by the Tribunal.

9. It is further deponed that the evidence sought to be adduced is not new and the Applicant failed to exercise due diligence to adduce evidence in his possession, the discretion of the Tribunal ought therefore not to be exercised in the Tenant’s favour.

Analysis and determination 10. The only issue that arises for determination in this Application is whether the Tenant/Applicant is entitled to the orders sought in his Application.

11. On the principles guiding the exercise of jurisdiction to re-open a case and receive additional evidence in a court, the court in the case of; Susan Wavinya Mutavi vs Isaac Njoroge & Nairobi City County Government [2020] KEELC 8 [KLR] delivered itself as follows;-At paragraph 10;“Over the years Kenya’s superior courts and courts in the Commonwealth have developed principles which guide the exercise of jurisdiction to re-open a case and receive additional evidence in a Civil court. first, the jurisdiction is a discretionary one and it is to be exercised judiciously. In exercising that jurisdiction, the court is duty bound to ensure that the proposed re-opening of a party’s case does not embarrass or prejudice the opposite party.Second, where the proposed re-opening is intended to fill gaps in the evidence of the Applicant, the court will not grant the plea.Third, the plea for the re-opening of a case will be rejected if there is inordinate and unexplained delay on the part of the Applicant.Fourth, the Applicant is required to demonstrate that the evidence that he seeks to introduce could not have been obtained with reasonable diligence at the time of the hearing of his case.Fifth, the evidence must be such that if admitted, it would probably have an important influence on the result of the case, though it need not be decisive.”

12. The court in the same case at paragraph 14 of the decision proceeded to render itself as follows;-“My understanding of our civil trial law is that the plaintiff is supposed to tender all her evidence and close her case. She has no reason to re-open her case for purposes of rebutting the defendants evidence or to face the emerging gaps after the defendant has closed his case and after parties have exchanged their written submissions.”

13. The Application by the Tenant is brought on the grounds that the Tenant wishes to re-open its case and adduce new and additional evidence which was not within the knowledge of the Applicant and/or could not be produced at the time the matter was heard and parties closed their respective cases. The Tenant has further adduced the ground that the additional evidence is directly relevant and will impact the decision of the Tribunal.

14. The Tenant in his affidavit depones that the evidence he seeks to introduce relates to the rent payable for the period January 2016 to July 2020.

15. The documents that the Tenant wishes to introduce in evidence are;i.A letter from N W Realite dated 31. 5.2017ii.A letter from A.N. Ndambiri & Company Advocates dated 9. 6.2017iii.Landlord’s notice to terminate tenancy dated 5. 9.2016

16. Whereas the Tenant generally states that he was unable to produce the above documents during the hearing because they were not within his knowledge, the Tenant does not state under what circumstances the documents were not within his knowledge considering the documents were either addressed to him or written by himself. It is also clear that the documents that the Tenant wishes to rely on predate the filing of this case and it is therefore my view that the Tenant has not demonstrated that those documents were not within his knowledge and/or that the same could not be produced during the hearing.

17. The Tenant has submitted that the additional evidence is intended to remove any vagueness or doubt on billing components of the Tenant’s rental proponents. I do not think it is open for the Tenant to continue improving on its case long after the parties have closed their cases as clearly he had the opportunity to do so during the trial. The submission by the Tenant that it seeks to adduce additional evidence because the Tribunal made an inquiry into the components of the monthly billings does not in my view warrant the re-opening of the Tenant’s case.

18. I do note that the parties closed their cases on 30. 9.2024. The Tenant filed his Application on 14. 10. 2024 which I do not find to be an inordinate delay.

19. That said, I am not convinced that the Tenant’s Application dated 14. 10. 2024 has any merits and proceed to dismiss the same with costs to the Respondents.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF FEBRUARY 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Ndambiri (the Applicant) and Mr. Ooko for the Landlord.Court: Parties to file and exchange their submissions within twenty-eight days.Mention on 1. 4.2025.