REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL VIEW PARK TOWERS 7TH & 8TH FLOOR
TRIBUNAL CASE NO. 792 OF 2018 (NAIROBI)
CATHERINE MUTHONI KARUGIA.................................................APPLICANT/LANDLADY
VERSUS
KINYUA MURIITHI..............................................................................TENANT/RESPONDENT
RULING
1. Before me is an application dated 4th June 2021 in which the Tenant is seeking for an order to set aside, vary or rescind the orders issued by Hon. MBICHI MBOROKI on 11th June 2020.
2. He further seeks that the Landlady’s application in Tribunal case no. BPRT 792/2018 dated 26/5/2020 be heard de novo.
3. The said application is supported by the affidavit of the Tenant sworn on 4th June 2021 and the grounds set out on the face thereof.
4. The Tenant contends that the impugned order of 11th June 2020 effectively reviewed the judgment entered against her on 26th May 2020 in circumstances inimical to the proper procedure for grant of review as provided under order 45 of the Civil Procedure Rules, 2010.
5. The Tenant contends that the orders granted are absurd in that they grant some prayers that are mutually exclusive for instance staying and varying a judgment that has been set aside.
6. The Tenant complains that the impugned orders do not indicate the Tribunal’s decision on every separate issue.
7. It is the Tenant’s case that the Tribunal granted ex-parte orders for stay of execution of judgment dated 26/5/2020 on 5/6/2020 without any application filed to review the orders dated 29/5/2020 where the court directed that the Landlady’s application for stay and review was to be heard on 26th June 2020.
8. The Tenant further complains that the Tribunal granted a stay of execution of judgment/decree without jurisdiction as that is an appellate function and that his replying affidavit was not considered.
9. Although the Landlady/Respondent counsel did not file a replying affidavit, he argued on points of Law that under section 12 of Cap. 301, Laws of Kenya, the Tribunal had jurisdiction to control the proceedings.
10. The Respondent’s counsel cited Article 50(e) of the constitution of Kenya, 2010 to submit that this court is enjoined to conclude cases without undue delay and that the instant application was an attempt to control how the Tribunal should conduct the trial.
11. The issues complained of happened (one) year ago and there was no appeal.
12. It is the Respondent’s case that order 42 and 45 of Civil Procedure Rules are not applicable to the instant proceedings and the application is intended to delay an early conclusion of this case.
13. I have considered the application and looked at the court record and make the following findings:-
(i) The impugned order of 11th June 2020 was made pursuant to an application dated 26th May 2020 in which the Landlord/Respondent sought inter-alia that the Tribunal varies and/or sets aside the judgment entered against her on 26th May 2020 and that her rent assessment report dated 9th August 2019 filed on 20th September 2019 be considered.
(ii) The Landlady/Respondent sought that the Reference dated 29th May 2019 be heard de novo.
(iii) On 5th June 2020, the Tribunal ordered that the Landlord’s application dated 26th may 2020 be taken out of the hearing list of that day and be heard on 11th June 2020.
(iv) The orders of 26th May 2020 were on the same 5th June 2020 stayed and the Landlord was to serve the Tenant with a copy of the order.
(v) On 11th June 2020 in the presence of one Kamau for the Landlord and the Tenant in person, the application dated 26th May 2020 was allowed as prayed.
(vi) No appeal was preferred against the said orders of 11th June 2020.
(vii) On 20th May 2020, this matter came up for hearing and proceeded with the Landlady’s witness giving evidence and closing her case.
(viii) The Tenant/Applicant also testified but was stood down for cross examination on 15/6/2021.
(ix) The issue of the orders now sought to be set aside did not arise until after end of the Tenant’s evidence in chief when he indicated that he needed the order for purposes of challenging it.
(x) The issue raised in the Tenant’s application constitutes grounds of appeal and this Tribunal has no jurisdiction to sit on appeal against its own decision.
(xi) The application having been brought after one (1) year since the orders sought to be set aside is belated and an afterthought.
(xii) The then chairman of this Tribunal had jurisdiction to make the order he did under section 12(1) of Cap. 301 for reasons advanced in the application before him and I have no jurisdiction to interrogate whether that power was exercised properly or not.
(xiii) Allowing the instant application for the reasons advanced by the Tenant would amount to questioning the exercise of the former chairman’s discretion in determining the application before him without jurisdiction.
14. In the premises, I dismiss the application dated 4th June 2021 with costs to the Landlady/Respondent.
DATED SIGNED & DELIVERED THIS 18TH DAY OF JUNE 2021.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
In the presence of:
Mr. Njiraini for the Landlady
No appearance for the Tenant
Further order: Further hearing on 27th July 2021 at 12.00 noon........upon the Tenant.
HON. GAKUHI CHEGE
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
18th June 2021.