Peter Kaburu v Glory Kanyiru [2022] KEBPRT 11 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E015   OF 2021   (MERU)

PETER KABURU..........................................................................APPLICANT/TENANT

VERSUS

GLORY KANYIRU.............................................................RESPONDENT/LANDLORD

RULING

1.  The tenant/applicant was served with a tenancy notice dated 28/10/2021 by the Respondent one Glory Kanyiru seeking termination of the tenancy over plot no. 3364, Kiengu Market on grounds that the former had defaulted to payment from July 2021 to October 2021 totaling Kshs.12,000/-.

2.  The tenant filed a reference dated 8th December 2021 against the said tenancy notice which was expressed to take effect on 1st January 2022.  The reference was fixed for hearing on 16th December 2021.

3.  On 16th December 2021, the tenant did not attend the virtual court session but the landlord attended.  As a result, the reference was dismissed for want of attendance with costs of Kshs.5000/- to the landlord.

4.  On 30th December 2021, the tenant moved the Tribunal seeking for orders to set aside the dismissal order made in favour of the landlord and reinstatement of his reference to enable a fair hearing.

5.  He contends that the suit plot no. 3364 was sold to him by the late Jacob Mwambia at a consideration of Kshs.750,000/- which was paid in full.  As such, the Respondent has no claim over the business premises since she was a witness to the transaction.

6.  It is the Applicant’s case that it was only fair and just if the orders sought in the motion are granted.

7.  The application is opposed through the replying affidavit of the Respondent sworn on 6th January 2022.  It is deposed that the tenant has not come to court with clean hands as he has been paying rent to the Respondent after her husband passed away in every 6 months.

8.  According to the Respondent, this Tribunal has no jurisdiction to hear matters concerning ownership of the suit property.

9.  As such the Respondent seeks that the application be dismissed with costs.

10. I am now required to determine whether to allow the application by the applicant or not.  I am also required to determine who is liable to pay costs.

11. Section 12 (1)(i) of cap 301, Laws of Kenya empowers this Tribunal to vary or rescind any order made by it under the provisions of the Act.

12. Although the applicant has not explained his failure to attend court on 16/12/2021, I am aware of the challenges parties acting in person have been facing while participating in virtual court proceedings and I am therefore entitled to take judicial notice thereof under section 60(1) (0) of the Evidence Act, Cap.. 80 Laws of Kenya as a matter of general or local notoriety.

13. I have noted the fact the applicant cites the need for hearing on account of the fact that he bought the suit property from the original owner stating that he was not a tenant.  This is a matter that ought to be heard on merit.

14. I am not persuaded that this Tribunal has no jurisdiction to adjudicate over the dispute herein as section 12(1) (a) of Cap. 301, Laws of Kenya mandates the Tribunal to determine whether or not any tenancy is a controlled tenancy.

15. In view of the foregoing, I am of the considered view that there is need to hear and determine the instant dispute on the merits.

16. In conclusion therefore, the following orders commend to me:-

(i)    The application dated 30/12/2021 is allowed in terms of prayer 2 thereof.

(ii)   Costs of the application shall abide the outcome of the reference.

(iii)   The parties hereto shall file and serve each other with witnesses statements and documents in compliance with order 11 of the Civil Procedure Rules, 2010 within the next Thirty (30) days hereof.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF MARCH 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Kamau for the Landlord/Respondent

Further orders:

Mention on 26/4/2022 to confirm compliance

Order arising from the above ruling to be served upon the Tenant by the Landlord’s counsel.