Sarah Wairimu v Westfield Shopping Mall & another [2022] KEBPRT 670 (KLR)

Sarah Wairimu v Westfield Shopping Mall & another (Tribunal Case E019 of 2021) [2022] KEBPRT 670 (KLR) (Civ) (2 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 670 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E019 of 2021

Gakuhi Chege, Vice Chair

September 2, 2022

Between

Sarah Wairimu

Tenant

and

Westfield .Shopping Mall Ltd

Landlord

and

Olive Joycare

Agent

Ruling

1. On May 27, 2022, this tribunal delivered a ruling in which the following orders were issued:-(i)The tenant is allowed to vacate the demised premises being shop no 4, Arcade discount building, Ngong road upon payment of Kshs 53,000/- in rent arrears and upon restoring the premises to the same condition it was at the time of taking possession.(ii)The OCS Kilimani police station shall ensure that there shall be peace and tranquility during the process of exit and restoration of the premises as ordered.(iii)The said payment and restoration shall be made within Thirty (30) days hereof and parties shall have liberty to apply should there be default in compliance.(iv)Each party shall bear own costs of the suit.

2. On July 14, 2022, the advocates for the tenant applied and were supplied with a copy of the ruling delivered on May 27, 2022 through one Fred Mukunya.

3. By a motion dated August 3, 2022, the tenant moved this tribunal seeking inter-aliafor stay of execution, review, variation, rescission and/or setting aside the order directing payment of Kshs 53,000/- as rent arrears and substitute it with an order that no rent arrears are payable by the tenant.

4. The application is founded on the ground that there is a mistake apparent on the face of record on the order for payment of Kshs53,000/- as the only rent not paid was for the month of November 2020 based on previous affidavits and ruling of September 30, 2021.

5. According to the tenant, the arithmetic on rental arrears does not tally with the facts of the suit herein and as such there was an erroneous conclusion which should be reviewed on the basis that the determination for payment of Kshs 53,000/- as rent arrears has no factual basis, constitute mistake and error apparent on the face of the record.

6. The grounds on the face of the application are reiterated in the supporting affidavit of the tenant which contains 17 paragraphs.

7. The application is opposed through the replying affidavit of Robert Nyamweya wherein it is stated that the tenant was in huge rent arrears but the tribunal only ordered payment ofKshs53,000/- which was lenient to the tenant.

8. The suit premises was still closed and the Respondent was continuously going into loss and the premises ought to be ordered open and the tenant ordered to pay rent from June 2022 up to date of opening.

9. The impugned ruling of May 27, 2022 is well reasoned and considered all parties’ documents and submissions.

10. I have also seen the landlord’s application dated August 16, 2022 which seeks for breaking orders in respect of the suit premises, for recovery of rent arrears of Kshs 53,000/- and restoration thereof to the same condition it was at the time of taking possession and that theOCS, Kilimani police station do supervise the exercise.

11. The affidavit in support sworn by Robert Nyamweya Onchonga on August 16, 2022 shows that the order was served upon the tenant and her advocates.

12. I listened to both counsels on August 31, 2022 in respect of the two applications and consider the issues for determination to be as follows:-(a)Whether the tenant is entitled to the orders sought in the application dated August 3, 2022. (b)Whether the landlord is entitled to the orders sought in the application dated August 16, 2022. (c)Who is liable to costs?

13. The application dated August 3, 2022 is seeking for exercise of the tribunal’s discretion to review, vary, rescind or set aside the order directing payment of Kshs 53,000/- by the tenant as rent arrears.

14. In the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, the Court of Appeal at page 4/5 stated as follows:-“A review may be granted whenever the court consider that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review”.

15. In the case at hand, the ruling pursuant to which the impugned order was made arose from the question of reconciliation of rent account and this tribunal analysed all documents and statements of accounts presented by both parties before arriving at the ruling. The tenant wishes to have a second bite of the cherry by inviting the tribunal to re-look at the accounts and come to a different result. This is not in my view a matter that should be a basis for review.

16. The applicant has not availed any evidence that was not presented at the time the matter was considered by the Tribunal to warrant at review. Even from the length of the affidavit in support, the ground for review cited is argumentative and constitutes grounds of appeal.

17. In regard to the landlord’s application dated August 16, 2022 and the prayer for payment of rent from June 2022 made vide the replying affidavit sworn on August 30, 2022, I note that there is no replying affidavit thereto.

18. The suit premises despite the ruling of May 27, 2022 have remained closed. The tenant failed to take advantage of the ruling and continued to occupy the suit premises choosing instead to bring an application to further dispute the order for payment of Kshs 53,000/- found to be in arrears to the chagrin of the landlord who continues to lose rental income in respect of the suit premises.

19. In my considered view, the sword of justice should always cut both ways and the landlord is entitled to justice as much as the tenant. As such, the tenant having failed to vacate the premises and to comply with the other orders of May 27, 2022, she cannot be allowed to eat her cake and have it.

20. In the premises, I am satisfied that the landlord is entitled to the reliefs sought in the application dated August 16, 2022 and to payment of rent from June 2022 at the previous monthly rates until the tenant is removed from the suit premises.

21. Costs are in the tribunal’s discretion under section 12 (1) (k) of cap 301, laws of Kenya. However, such costs always follow the event unless otherwise ordered by the court. I have no reason to deny costs to the respondents.

22. In conclusion therefore, the final orders that commend to me are:-i. The tenant’s application dated August 3, 2022 is hereby dismissed with costs.ii. The landlord’s application dated August 16, 2022 is allowed in terms of prayers 2 and 3 with costs.iii. The tenant shall pay monthly rent of Kshs 30,000/- per month with effect from June 1, 2022 until she vacates or is evicted from the premises in addition to Kshs 53,000/- decreed in the previous ruling dated May 27, 2022. iv. The tenant shall pay Kshs 10,000/- as costs for the two applications subject matter hereof.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 2Nd DAY OF SEPTEMBER 2022. **HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Muhuyu for TenantOdhako for the Landlord