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Mbugua v Macharia (Tribunal Case E081 of 2024) [2024] KEBPRT 1587 (KLR) (11 November 2024) (Ruling)

Mbugua v Macharia (Tribunal Case E081 of 2024) [2024] KEBPRT 1587 (KLR) (11 November 2024) (Ruling)
Citation
Mbugua v Macharia [2024] KEBPRT 1587 (KLR)
Media Neutral Citation
[2024] KEBPRT 1587 (KLR)
Court
Business Premises Rent Tribunal
Outcome
Allowed
Case number
Tribunal Case E081 of 2024
Judges
A Muma
Judgment date
11 November 2024
Language
English
Type
Judgment
Original source file
Download DOCX (37.3 KB)
Collections
Date published
20 February 2025
Case action
Ruling
Filing county
Nairobi
Order
Application allwed
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A. Parties and their Representatives
1.The Applicant is the tenant (the “Tenant”) of a shop premises located within Bondeni area within Nakuru County in the Republic of Kenya.
2.The Tenant appears in person in this matter.
3.The Respondent is the lawful owner of the suit premises and hence the Landlord.
4.The firm of Bomett Kiprotich & Company represents the Respondent in this matter.
B. Dispute Background
5.The Tenant moved this Tribunal vide a Reference dated 18th June 2024 and a Notice of Motion under a Certificate of Urgency evenly dated seeking Orders inter alia; that the matter be certified urgent and that the Landlord be restrained from harassing and evicting or in any way interfering with the quiet possession of the suit premises.
6.Upon considering the Tenant’s Application, this Court issued interim Orders dated 19th June 2024 restraining the Landlord from evicting and harassing the Tenant, that the OCS Bondeni Police Station ensures compliance and keeps peace and that the Tenant does serve the Reference and Application upon the Landlord for hearing on 26th June 2024 and thereafter, file an Affidavit of Service.
7.When the matter came up for interpartes hearing on 26th June 2024, this Tribunal, in the absence of the Tenant, directed that the Tenant clears the outstanding rent arrears of KShs. 84,000.00 in default of which the Landlord was at liberty to levy distress for rent.
8.Consequently, the Tenant filed an Application dated 25th July 2024 seeking Orders reviewing and/or staying this Honourable Tribunal’s Orders dated 26th June 2024.
9.It is the Tenant’s Application for review dated 25th July 2024 that is the subject of this Ruling.
C. The Tenant’s Case
10.The Tenant avers that she has rented both residential and business premises from the Landlord. She avers that she has cleared rent arrears in respect of the business premises and is not in arrears as alleged by the Landlord.
11.The Tenant therefore prays that this Tribunal reviews its Orders ordering her to pay KShs. 84,000.00 as outstanding arrears and restrain the Landlord from levying distress for rent.
D. The Landlord’s Case
12.The Landlord avers that the Tenant’s Application is misleading and untrue and crafted to distort facts.
13.It is the Landlord’s case that the Tenant sublet the suit premises to Kevin Mchengo without his consent and has attached Mpesa statements showing rent payments made by Kevin Mchengo.
14.The Landlord further avers that Kevin Mchengo has been using the suit premises for illegal purposes including selling of Khat, which has attracted unruly idlers who use drugs and engage in disruptive behavior causing nuisance to the neighboring residents.
15.The Landlord claims that the Tenant is in rent arrears amounting to KShs. 84,000.00 which is rent for the months of July to October 2024.
E. Issues for Determination
16.I have given full consideration to the Tenant’s Notice of Motion Application dated 25th July 2024 and Respondents’ Replying Affidavit dated 27th September 2024.
17.It is my considered opinion that the sole issue for determination is;Whether this Tribunal should stay, review and/or suspend the enforcement and/or execution of the Orders issued on 26th June 2024 and all consequential processes arising therefrom.
F. Analysis and Determination
18.Section 80 of the Civil Procedure Act Cap 21 provides as follows: -“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
19.Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -“1.(1)Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
20.A clear reading of the above provisions shows that Section 80 gives the power of review while Order 45 sets out the rules. The rules restrict the grounds for review. They lay down the jurisdiction and scope of review. They limit review to the following grounds-(a)discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or(c)for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.
21.In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR the Court of Appeal observed that;“Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason...”
22.I have considered the impugned Orders dated 26th June 2024 and note that several issues have been raised. Firstly, there is a contention in relation to residential premises to which this Court lacks jurisdiction. Secondly, the rent payable in respect of the business premises is in dispute and in turn, the outstanding rent arrears.
23.It would therefore be unfair to order the Tenant to pay the alleged rent arrears of KShs. 84,000.00 and allow the Landlord to levy distress for rent while the outstanding rent arrears continue to be in dispute, and which dispute can only be resolved in a full hearing.
G. Determination
24.In the upshot, the Tenant’s Application dated 27th July 2024 is allowed in the following terms;a.The Orders of this Court dated 25th June 2024 are hereby stayed and set aside;b.Tenant to keep paying rent in respect of the business premises as and when it falls due;c.The Tenant to file submissions and proof of payment of rent within 14 days of the date herein and thereafter, the Landlord to file submissions and statement of accounts within 14 days in respect of the business premises.d.The matter be scheduled for hearing on 13th January 2024.e.Costs shall be in the cause.
HON. A MUMA - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 11TH DAY OF NOVEMBER 2024 IN THE PRESENCE OF BOMETT FOR THE RESPONDENT/LANDLORD AND N/A FOR THE TENANT/APPLICANT.HON. A MU - MEMBERBUSINESS PREMISES RENT TRIBUNAL
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