Thikora v Mundia [2022] KEBPRT 238 (KLR)

Thikora v Mundia (Tribunal Case E238 of 2021) [2022] KEBPRT 238 (KLR) (Civ) (25 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 238 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E238 of 2021

Gakuhi Chege, Vice Chair

July 25, 2022

Between

Stanley Thikora

Applicant

and

Nicholas Mundia

Respondent

Ruling

1. Before me is an application dated March 3, 2022in which the tenant is seeking for review, setting aside and/or variation of the orders of February 25, 2022 pursuant to which his application dated October 4, 2021 was dismissed.

2. The grounds upon which the application is brought are that there was an error apparent on record as part of his evidence was not uploaded on the tribunal’s file. The document allegedly not uploaded is a further affidavit sworn on November 5, 2021 and submissions dated November 12, 2021. As a result, the Tribunal’s ruling was delivered without considering the contents and annexures to the further affidavit. Among the annexures attached to the affidavit were Equity Bank receipts marked ‘ST2’.

3. The application is supported by the affidavit of the tenant’s advocate sworn on March 3, 2022 wherein the grounds set out on the face of the application are relied upon.

4. A receipt for payment of court fees marked ‘BR1’ is annexed to the affidavit to prove that the tenant had on November 12, 2021 filed written submission and further affidavit with annexures.

5. The application is opposed through the landlord’s replying affidavit sworn on October 29, 2021 in which the same is attacked on grounds of lack of merit, being frivolous and an abuse of court process. The tenant is accused of failure to pay rent as and when the same falls due in breach of contract. As at October 29, 2021, the applicant was in arrears of Kshs 265,000/- which was still accumulating. No evidence of payment was tendered by the tenant.

6. The tenant is also accused of failure to pay utility bills of water and garbage collection charges in the sum of Kshs 69,605. 11 as per annexure ‘NM2’. As a result, the landlord contends that the tenant should not be aided to perpetuate his illegality by granting the orders sought.

7. It is contended that since the tenant was seeking an equitable remedy, he ought to have approached the Tribunal with clean hands and having concealed his non-payment of rent should not be granted the discretionary orders sought.

8. I am required to determine the following issues:-(a)Whether the tenant is entitled to the reliefs sought in the application dated March 3, 2022. (b)Who is liable to pay costs of the application?.

9. The application was directed to be disposed of by way of written submissions but only the tenant’s counsel obliged. I shall consider the submissions together with the issues framed above.

10. Although the tenant submits that he filed a further affidavit and submissions in support of the dismissed application, the same are not attached to the supporting affidavit neither are the contents thereof disclosed. As matters stand, the applicant has not demonstrated existence of the said documents. He was under a legal duty to upload the documents upon payment of court fees.

11. The tenant’s advocate in his affidavit in support of the application has not alluded to what would have changed the decision of this tribunal in regard to the missing documents. No evidence has been tendered before me to demonstrate that the tenant had settled the rent arrears claimed by the landlord by the time the decision was made. This was the main reason for dismissal of the application.

12. The tenant submits on the basis of the decision in Timber Manufacturers and Dealers v Nairobi Golf Hotels (K) Ltd that failure to upload the missing documents amounts to an error apparent on the face of record. The only document relied upon in support of the submission is the court payment receipt. In absence of the missing documents, it is not possible to tell whether it is the tenant’s mistake or error in failing to upload the same or it is the registry staff who failed to print them. In any case, the tenant has not pleaded the contents of the said documents that would have changed the court’s decision.

13. The tribunal considered the documents that were on record before making its ruling and as such, the tenant’s submission that he was denied a fair hearing is not correct.

14. I have sought guidance from the case of Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya [2019] eKLR wherein Justice Mativo analysed various cases on what amounts to an error on the face of record. He cites the case of Nyamogo & Nyamogo v Kogo at paragraph 14 as follows:-“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face and there could possibly be no two opinions a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal”.

15. In the instant application, I am not convinced that the failure to upload or print the missing documents which are still not on the court record would have swayed me to arrive at a different decision more so given that the same are not exhibited in support of the application. The alleged error is not demonstrated.

16. In the premises, I am unable to exercise my discretion in favour of the tenant and proceed to dismiss the application with costs of Kshs 10,000/- to the respondent.It is so ordered.

RULING DATED, SIGNED AND VIRTUALLY DELIVERED THIS 25TH DAY OF JULY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Githaiga for landlord.Ngugi for the tenant.