Samuel C. Mwani v Benson Lung’ayia [2022] KEBPRT 27 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 100 OF 2020 (KAKAMEGA)

SAMUEL C. MWANI………………………….………LANDLORD/APPLICANT

VERSUS

BENSON LUNG’AYIA…………………………………TENANT/RESPONDENT

RULING

1. This Tenant’s application dated 2nd December 2021 majorly seeks an order that the ex-parte hearing and the resultant orders of 27th October 2021 be set aside and the case be heard on merit.

2. The application is supported by the affidavit of Benson Lungatia, the Applicant and the grounds on the face of the said application.  The same may be summarized as follows;

a. That the matter proceeded for hearing on a date when the Applicant was not served.

b. That there was no Tenant/Landlord relationship when the orders were made as the Applicant had vacated the premises and the arrears had been cleared.

c. That the Applicant has a good defence to the Respondent’s reference.

3. From a perusal of the court records, the following facts emerge;

a. On 24th February 2021, both parties appeared before the Tribunal.  The Landlord was ready to proceed but on the application of the Respondent (Tenant) the Respondent was granted twenty-one days to file his response.

b. On 14th April 2021, both parties were absent.

c. On 27th October 2021, the Tenant was absent and the Tribunal made the following orders;

i. That the Tenant is ordered to pay all the rent arrears, electricity and water bills.

ii. The Tenant is further ordered to vacate from the suit premises.

iii. The OCS Shisasani Police Station to ensure compliance with these orders.

iv. The Landlord will have costs of the reference.

Those are the orders that the Applicant now seeks to set aside.

4. On 24th February 2021, the Applicant was granted twenty-one days to file his responses to the reference.  He was on the material day represented by Ondieki Advocate.  The twenty-one days were to lapse on or about 16th March 2021.  By 27th October 2021 when the orders sought to be set aside were made, the Tenant/Applicant had not filed any response to the reference by the Landlord.  consequently, the notice to terminate tenancy dated 30th January 2020 took effect under section 10 of Cap 301.  The only response from the Tenant is the affidavit sworn on 10th December 2021 which was filed way out of time and without leave.  It was not available for consideration when the orders of 27th October 2021 were made.

5. The Tenant has indicated that as at the time the orders were made, he had already vacated the suit premises.  Orders 3 and 4 issued on 27th October 2021 are therefore of no consequence to the Tenant, he has already vacated.  If the Tenant has cleared all rent arrears and bills as he claims, then he only needs to show that evidence to the Landlord and that would put this matter to rest.  The only issue that would remain contested is the issue of the costs of the reference awarded to the Landlord.

6. I have already found that as at the time the orders were made on 27th October 2021, the Landlord’s notice and reference remained unopposed.  The Tenant failed to meet the timelines set by the Tribunal and sought no leave to file his belated affidavit.

7. In those circumstances, the Landlord was entitled to the prayers he sought and the same were granted.  I hold that the Landlord was entitled to the costs and no good cause has been shown why that order should be vacated.

8. In the circumstances obtaining above, no useful purpose would be served in setting aside the orders made on 27th October 2021.  The Tenant’s application dated 2nd December 2021 is hereby dismissed with no order as to costs, the Landlord having not opposed the same.

HON. CYPRIAN MUGAMBI NGUTHARI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL

Ruling dated, signed and delivered virtually by Hon P. May (Vice Chair) this15thday of February, 2022in the absence of the parties.

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL