World Peak International Ltd v Gacher [2022] KEBPRT 687 (KLR)

World Peak International Ltd v Gacher (Tribunal Case E318 of 2021) [2022] KEBPRT 687 (KLR) (Civ) (2 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 687 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E318 of 2021

Andrew Muma, Vice Chair

September 2, 2022

Between

World Peak International Ltd

Applicant

and

Caroline Gacher

Respondent

Ruling

Parties and representatives 1. The applicant World Business Centre is the landlord and the registered owner of the property known as World Business Centre situate in Nairobi Central Business District L R No 209/545 (hereinafter known as the landlord).

2. The firm of M/S Macharia Gakaria & Associates represents the landlord/applicant.

3. The respondent Caroline Gacheri is the tenant of a rented business space. (hereinafter known as the tenant)

4. The firm of M/S Swaka Advocates represents the tenant/ respondent.

The dispute background 5. On November 17, 2020 the respondent/tenant filed a plaint and a notice of motion application before the Milimani Commercial Courts praying that judgment be entered against the applicant/landlord to permanently restrain them from evicting, attaching, transferring, selling, conveying, charging, leasing or in any other way interfering with the plaintiff’s quiet possession and enjoyment of the suit property. Further the tenant was seeking special damages, specific performance, general damages and costs of the suit.

6. On December 14, 2020 the court in reference to the application gave orders restraining the landlord/applicant and the same were made mandatory on January 25, 2021.

7. The landlord/applicant then moved this tribunal by way of reference and a notice of motion application dated June 29, 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The landlord was seeking amongst other orders that pending the hearing and determination of the reference that the tribunal be pleased to give orders allowing the landlord to levy distress for recovery of rent arrears of Kshs 576,000/= and further that in default of satisfactory recovery that the landlord be allowed to evict and reenter the premises.

8. This tribunal issued a ruling on December 14, 2021 dismissing the tenant’s preliminary objection dated August 4, 2020 and giving inter alia orders that the landlord’s reference dated June 29, 2021 be canvassed in full.

9. On February 15th, when this matter came for hearing the applicant landlord failed to attend and the tribunal made an order dismissing the case before the tribunal for want of prosecution.

10. In an application vide notice of motion dated April 14, 2022, the landlord/ applicant sought reinstatement of the reference that was dismissed for non-attendance on February 7, 2022.

11. The tenant/respondent filed grounds of opposition dated April 7, 2022 claiming that the defendant’s application is misconceived, frivolous devoid of merit, incompetent and malafides and that the application is bad in law and an afterthought.

12. The landlord has also filed an application vide notice of motion dated July 8, 2022. When the matter was up for hearing before Hon Cyprian Mugambi (Chairman), he directed that the matter be mentioned before me for directions.

13. During the mention, Mr Swaka, advocate for the tenant confirmed that he was served with the application dated July 8, 2022. He also stated that the matter had been dismissed and that the application for reinstatement that was yet to be heard.

Jurisdiction 14. The jurisdiction of this tribunal is not in dispute.

The landlord’s claim 15. The landlord claims that when the matter was scheduled for mention on February 7, 2022, counsel did not appear on the online platform due to logistical and internet failure.

16. The landlord’s advocate Mr Gerald Gikaria contends in a supporting affidavit sworn on February 22, 2022 stated that the matter was called out in his absence.

17. He further states that his failure to attend court was not deliberate but was occasioned by loss of internet and his inability to log in to the online platform.

The tenant’s claim 19. The tenant filed grounds of opposition dated April 7, 2022 claiming that the defendant’s application is misconceived, frivolous devoid of merit, incompetent and malafides and that the application is bad in law and an afterthought.

20. In his submissions dated April 7, 2022, he claims that the application made by the applicant is full of mistruths and assertions that cannot be supported by any evidence.

List of Issues for determination 21. The issues raised for determination before this tribunal are as follows;(i)Whether this tribunal should set aside its order made on February 7, 2022 and reinstate the suit.

Analysis and Findings 22. The landlord/applicant states that he has been diligent in prosecuting the matter and the non- attendance of learned counsel on the scheduled date of February 7, 2022 was due to reasons beyond his control. He further stated the applicant stands to suffer irreparable harm if the reference is not heard on the merit.

23. The tenant/respondent on the other hand submitted that the discretion to set aside an order of dismissal is purely discretional but the discretion is held close to the court’s chest. He further submits that the application made by the applicant is full of mistruths and assertions that cannot be supported by any evidence.

24. He also submits that the discretion to set aside is never exercised in favour of someone who deliberately by evasion or otherwise seeks to block the course of justice.

25. This tribunal has gone through submissions made by both parties and the authorities cited and states the following.

26. This tribunal just like other courts and tribunals is guided by the provisions of the Constitution particularly article 159(2) which provides that in exercising judicial authority, courts and tribunals shall be guide by the principles of: justice being done to all, justice not being delayed, alternative forms of dispute resolution being promoted, justice being administered without undue regard to technicalities and promotion and protection of the purposes and principles of the Constitution.

27. In the various authorities quoted by both parties, the overarching principle is the main concern courts and tribunals should consider in such disputes is the concern of justice.

28. In the case of Franklin J B Chabari V Tharaka Nithi County Government & Another(2019) eKLR quoted by the tenant/respondent, the factor to be considered are the application being made timeously.

29. In the case of Pithon Waweru Maina v Thuku Mugiria (1983) KLR 78 the court stated that the discretion in such situations is to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Further, a discretionary power should be exercised judicially and not arbitrarily or idiosyncratically.

30. In analyzing the happenings in the case and the applicable law, the tribunal notes that the application to set aside the order was made timeously. The application was filed on February 22, 2022. It cannot therefore be said that it was not made timeously.

31. Counsel for the landlord/applicant has also stated his inability to attend court was occasioned by interruption of internet connectivity making him unable to log in for the hearing date.

32. This tribunal takes judicial opinion that challenges with internet connectivity are a common phenomenon in the era of online meetings and online court sessions. However, that is not to say parties should not take advantage of such situations.

33. In the interests of justice and in line with the principles of exercise of judicial authority, I find that the landlord’s/applicant’s application is merited.

OrdersHaving made the analysis above. This tribunal makes the following orders:i.The order made on February 7, 2022 dismissing the suit for non-attendance is hereby set aside and the suit before this honourable Tribunal is reinstated.ii.The matter to be heard together with E703/2022 involving the same parties on October 18, 2022. iii.That costs be in the cause.

HON A MUMA VICE CHAIRBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually by Hon A Muma this 2nd day of September, 2022 in the presence of Ms Kojienda holding brief for Shaka for the Tenant, Gakana for the Landlord.HON A MUMA VICE CHAIRBUSINESS PREMISES RENT TRIBUNALGIVEN under my hand and Seal of this Court on 2022-09-09 14:31:42SIGNED BY: HON. ANDREW MUMA (VICE CHAIRPERSON) (ADMINISTER JUDGEMENTS)THE JUDICIARY OF KENYA. BUSINESS PREMISES RENT TRIBUNAL NAIROBIDATE: 2022-09-09 14:31:42