REPUBLIC OF KENYA
BUSINESS PREMISES RENT TRIBUNAL
TRIBUNAL CASE NO 39 OF 2015 (MOMBASA)
ALI MBARAK ALI T/A
MBARA PIT CONTRACTORS.............................TENANT/RESPONDENT
AND
TRUSTEES OF SHREE
MOMBASA LOHANA MAHAJAN......................LANDLORD/APPLICANT
RULING
PARTIES AND THEIR REPRESENTATIVE
1. The Tenant/ Applicant, Ali Mbarak Ali T/A Mbarak Pit Constructors, rented space on MSA/BLOCKXVI/15 for the business (hereinafter referred to as the ‘Tenant’)
2. Learned Counsel N.A. Ali & Co. Advocates represents the Tenant in this reference.
3. The Respondent Trustees Of Shree Mombasa Lohana Mahajan is the landlord and owner of suit premises on MSA/BLOCKXVI/15 rented out to the tenant (hereinafter referred to as the ‘Landlord’).
4. Learned Counsel Obara and Obara Advocates represents the Respondents.
THE DISPUTE BACKGROUND
5. On or about 30th of March 2015 the Tenant filed a reference to this tribunal opposing a notice of termination under Section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301. The Said Notice was filed by the Landlords Lawyers and endorsed by the Landlord. And the reason for termination was that the Tenant was paying rent far below the market rent.
6. The said notice was to run from 17th February 2015.
7. The Tenant filed a reference to tribunal dated 30th March 2015 challenging the Landlord’s notice. The tribunal gave an order dated 29th October 2018 dismissing the Landlord’s Notice dated 17th February 2015.
8. On 30th January 2020, the Tenant filed an application through Obara and Obara Advocates under a certificate seeking to set aside the judgemet dated 28th October 2018, reopen the proceedings and allow the reinstatement of the notice dated 17th February 2015, therein for the Landlord only became aware of the said happenings when he was served with the Notice of Taxation on 18th January 2020. The Landlord pleaded mistake of Counsel should not be vested on the litigant he claims the advocate never attended court and as such he was not heard.
9. In addition submissions dated 4th March 2020 explain in detail. The Application is opposed by the Tenant’s Replying Affidavit dated 15th January 2021 whereby it is confirmed that the Landlord never attended the proceedings and therefore the notice was dismissed and application allowed. Submission dated 15th January 2021 confirm the same and relies on authorities to buttress the point that the delay is too inordinate, Nahesh Kumar Aggarwal vs Silas KIptui Kipchilla & 2 others [2020] eKLR to warrant this court’s intervention.
10. The application coming up for ruling is therefore the Landlords application dated 30th January 2021 to set aside the orders dated 29th October 2018.
JURISDICTION
11. The Jurisdiction of this tribunal is not in dispute.
THE CLAIM AND DEFENCE
12. The Landlord’s claim is that failure of not attending proceedings was due to the misconduct of his former advocates, hence he should not be punished for the mistake of counsel.
13. The Tenant’s response to the Application by the Landlord is that the delay was too inordinate.
MATTERS NOT IN DISPUTE
14. There is no dispute that there was a Tenant and Landlord relationship governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya. (Controlled Tenancy)
LIST OF ISSUE FOR DETERMINATION
15. The parties raised certain issues for determination in their submissions and the tribunal shall proceed to distill the issues discussed by parties and their counsels who submitted in writing as below:
a) Whether or not the Parties were heard on merits?
b) Whether or not there was Mistake of Counsel?
c) Whether or not there was inordinate delay by the Landlord?
ANALYSIS AND FINDINGS
Whether or not the Parties were heard on merits?
16. I am persuaded by the Landlord’s argument that the notice dated 17th February 2015 was not heard on Merits as the Landlord was not present during the proceedings. As such I find no problem with the Landlord’s Notice of Motion application dated 30th January 2020.
Whether or not there was Mistake of Counsel?
17. Form the Landlord’s Submission dated 5th March 2020 and the Application dated 30th January 2020, I am persuaded that the Landlord’s failure to attend court was as a result of his former advocate who he had instructed to represent him.
Whether or not there was inordinate delay?
I am persuaded that the Application dated 30th January 2020 was not delayed by the Landlord as he only became aware of the orders dated 29th October 2018 after being served with the Taxation Notice dated 17th January 2020.
ORDERS
For the reasons given above I ORDER as follows that:
a) The Tribunal’s order dated 29th October 2018 is hereby set aside and all consequential orders therefrom. The upshot is that Taxation Notice and Bill dated 17th January 2020 stands dismissed.
b) The Landlord’s notice dated 17th February 2015 is hereby reinstated and Parties to file independent valuation reports
c) Parties to fix the reference dated 17th February 2015 for hearing on merits on the next session in Mombasa.
d) Each party to bear their own costs.
HON. A. MUMA
VICE CHAIR
BUSINESS PREMISES RENT TRIBUNAL
Ruling dated, signed and delivered virtually by Hon Cyprian Mugambi Nguthari this 21st May 2021 in the presence of Hassan for the Tenant and in the absence of Mukan for the Landlord.
HON. CYPRIAN MUGAMBI NGUTHARI
CHAIRMAN
BUSINESS PREMISES RENT TRIBUNAL