Registered Trustees of Christ Co-Workers Fellowship v Kenya Railways Staff Retirement Benefits Scheme & Nairobi Railways Club [2022] KEBPRT 48 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 898 OF 2016 (MOMBASA)

REGISTERED TRUSTEES OF CHRIST

CO-WORKERS FELLOWSHIP......................................................APPLICANT/TENANT

VERSUS

KENYA RAILWAYS STAFF

RETIREMENT BENEFITS SCHEME......................1ST RESPONDENT/LANDLORD

NAIROBI RAILWAYS CLUB.....................................2ND RESPONDENT/LANDLORD

RULING

1. On 19th May 2021, this matter was ordered withdrawn by consent of both parties with directions that counsels file submissions within 14 days on the issue of costs with the applicant beginning.

2. The landlord’s submissions are dated 29th September 2021 while the tenant’s are dated 22nd December 2021.

3. From the Tribunal’s record, the proceedings commenced on 4th November 2016 vide an application of even date by the tenant in which prayer 1 and 3 was allowed.

4. On 8th February 2017, a consent order was recorded allowing the applicant to file reference out of time in respect of the landlord’s notice dated 28th July 2016. The reference was ordered to be filed within 7 days from that date and the tenant was ordered to pay Kshs.20,000/- to the landlord.

5. On 6th March 2017, this Tribunal ruled that the tenant filed the envisaged reference outside the 7 days allowed contrary to the orders of 8th February 2017. The Tribunal proceeded to strike out the reference for being incompetent, and ordered the tenant to pay costs of the reference which were to be agreed upon or taxed by the Tribunal.

6. The Tribunal ordered that the landlord’s notice dated 20th July 2016 had taken effect under section 10 of Cap.301 and that the 1st Respondent was at liberty to institute appropriate eviction proceedings against the tenant.

7. On 9th March 2017 a consent order was recorded to the effect that both parties to file replying affidavit within 7 days and hearing was directed to take place in Kakamega on 20th March 2017 with status quo being maintained.

8. On 20th March 2017, the hearing was adjourned to 19th March 2017 at 2. 30 p.m and status quo ordered to be maintained.

9. The application was argued orally on 19th April 2017 wherein the tenant sought to vary, review or set aside the orders of 6th March 2017. The application was opposed and upon oral arguments, ruling was reserved for delivery on 26th May 2017.

10. It was not until 13th October 2017 when the ruling was delivered with the tenants application dated 8th March 2017 being dismissed with costs of Kshs.30,000/- being awarded to the landlord.

11. On 24th October 2017, the Tribunal allowed the tenant’s application dated the same date in terms of prayer 1,2 & 4 ex-parte and fixed it for interpartes hearing on 15th November 2017.

12. On 15th November 2017, the Tribunal was informed that there was an appeal vide ELC No. 48/2017 touching on the subject matter. The matter was adjourned to 19/1/2018.

13. On 19/1/2018, the matter was mentioned and adjourned to 19/3/2018. On 19/3/2018, the matter was stood over generally pending determination of the appeal. Parties were given liberty to apply depending on the outcome of the appeal.

14. On 19th March 2019, the tenant’s application dated 24th October 2017 was fixed for hearing on 28th May 2019. On 28th May 2019, the application was ordered to be disposed of by way of written submissions and mention was fixed for 8th July 2019 to confirm compliance.

15. On 8th July 2019, the matter was put off to 5th August 2019 when it was fixed for ruling on 29th November 2019.

16. The ruling was only delivered on 26th May 2020 to the effect that the tenant’s application dated 24th October 2017 is allowed in terms of prayers 3 and 4 with the tenant being ordered to pay thrown away costs of Kshs.30,000/- within 30 days from the date of ruling and in default the same shall be recovered by way of distress or execution under section 14(1) of cap. 301.

17. The application dated 8th March 2017 was fixed for hearing on 8th April 2021 by when the tenant had filed a notice of preliminary objection. The matter was fixed for mention on 22/4/2021 for directions.

18. On 22nd April 2021, counsel for the landlord indicated that the application dated 8/3/2017 had been overtaken by events on account of compulsory acquisition of the land where the premises are situate by Nairobi Metropolitan Services for construction of the Green Park.

19. This Tribunal directed the landlord to file documents to confirm the takeover within 21 days with mention being fixed for 17th May 2021.

20. On 17th May 2021, parties agreed that the matter be marked as withdrawn with each counsel being required to file and serve submissions on costs with the tenant beginning.

21. According to the tenant, it is entitled to costs of the application dated 8th March 2017 as well as the preliminary objection. On the other hand, the landlord submits that the issues raised by the tenant are res judicata and the Tribunal is functus officio. It seeks that the tenant pays to it costs ordered on the 5th February 2017, (Kshs.20,000/-) 6th March 2017 (costs of the reference), 13th October 2017 (Kshs.30,000/-), 24th October 2017 (Kshs.20,000/-) and finally on 26th May 2020 (Kshs.30,000/-).

22. I note that the ruling of 26th May 2020 set aside the orders issued on 24th October 2017 so that the landlord’s application dated 8th March 2017 proceeds on merits. The landlord was awarded costs thrown away by reason of the setting aside order in the sum of Kshs.30,000/-.

23. The application dated 8th March 2017 has thereafter not been heard nor determined as the proceedings were on 19th May 2021 withdrawn. It is not possible to determine with the said withdrawal which way the application and preliminary objection filed in respect thereto would have gone. The withdrawal order was by consent.

24. It has been submitted by both parties that costs are in the discretion of the trial court but such discretion should be exercised judicially.

25. The application and preliminary objection having not been heard and determined on merit, it is not possible as pointed out above to know which party would have won. It is therefore only fair that each party meets own costs of the said application dated 8th March 2017.

26. It is however important to note that the costs earlier granted to the landlord save those granted on 24th October 2017 in the sum of Kshs.20,000/- are payable by the tenant. I cannot sit on appeal against the award of such costs by a court of concurrent jurisdiction.

27. In the premises, each party shall meet own cots of the application dated 8th March 2017 and the preliminary objection filed thereon.

It is so ordered.

RULING SIGNED DATED, AND DELIVERED VIRTUALLY THIS 26TH DAY OF JANUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

Miss Wamucii for the Tenant

No appearance for the landlord