Case ID:165092

John Guchu Njoroge & another v Jotham Njami Mwariri [2016] eKLR

Case Metadata

Case Number:

Tribunal Case 47 of 2014

Parties:

John Guchu Njoroge & Stephen Njuguna Maina v Jotham Njami Mwariri

Date Delivered:

16 Dec 2016

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Mbichi Mboroki - Chairman Business Premises Rent Tribunal

Citation:

John Guchu Njoroge & another v Jotham Njami Mwariri [2016] eKLR

Advocates:

Kithinji for the Tenant

Babu holding brief for Kangiri for the Landlord

Court Division:

Tribunal

County:

Kiambu

Advocates:

Kithinji for the Tenant

Babu holding brief for Kangiri for the Landlord

History Advocates:

Both Parties Represented

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO. 47 OF 2014 (THIKA)

JOHN GUCHU NJOROGE

STEPHEN NJUGUNA MAINA.....................TENANTS/APPLICANTS

VS

JOTHAM NJAMI MWARIRI..................LANDLORD/RESPONDENT

RULING

The reference in the matter was listed for hearing on

29

th

September 2016

. The advocate for the Landlord was in the Tribunal. The matter was called out at

10.35 a.m.

The advocate for the Tenant was not present.

The advocate for the Landlord applied for the Tenant’s reference to be dismissed and the Landlord’s notice to be allowed. The Tribunal allowed the application by the advocate for the Landlord and made the following orders;

1. That the Tenant’s reference dated

29

th

January 2015

is dismissed for non attendance with costs.

2. The Landlord’s notice dated

26

th

May 2014

is allowed.

3. The Tenant shall vacate and deliver vacant possession of the suit premises on or before

1

st

October 2016

in default an eviction order shall issue without further reference to the Tribunal.

4. Costs to be agreed or taxed by the Tribunal.

5. The OCS Thika to enforce compliance.

On

5

th

October 2016

,

the advocate for the Tenant made an application under a certificate of urgency seeking to set aside and stay execution of the orders of the Tribunal issued on

29

th

September 2016.

The Tribunal issued interim stay orders on

5

th

October 2016

and listed the matter for hearing

inter partes

on

7

th

October 2016.

On

7

th

October 2016

the parties and the advocates appeared before the Tribunal and could not agree on the

status quo.

The advocate for the Landlord maintained that the Tenant had been evicted from the suit premises. The advocate for the Tenant maintained that the Tenant was not evicted and was in the premises. The Tribunal ordered the Rent Inspector to inspect the premises and prepare a status report. The Rent Inspector’s report was filed in the Tribunal on

31

st

October 2016

. The advocate of the parties have made oral submissions which are on record.

The Tribunal upon perusal of the record and upon hearing the submissions of the parties makes the following findings and observations.

1. The advocates for the Tenant was clearly served with the hearing notice and him and his client the Tenant should have been in the Tribunal on

29

th

September 2016.

2. The advocate for the Landlord disclosed all the material facts to the Tribunal and in particular the orders of the Environment and Land Court in

ELC 867/2014.

3. The Tenant/Applicant herein was not a party to

ELC 867/2014.

4. There is no order issued by a competent court to prohibit the Tribunal from hearing and determining the reference between the parties herein.

5. The Rent Inspector’s report filed on

31

st

October 2016

confirms that the Landlord attempted to evict the Tenant from the suit premises and the Tenant resisted and that he is in the suit premises.

6. The Tribunal does not issue any eviction orders.

7. An eviction order can only be obtained from the Chief Magistrate’s Court pursuant to an order under

section 14 of Cap 301

.

8. The Landlord did not obtain an eviction order from a civil court which was capable of being used to evict the Tenant.

9. Eviction orders are executed by duly licenced court bailiff and auctioneers.

10. The role of the police was to offer the court bailiff and/or auctioneer security but not to evict a Tenant.

All in all, the Tribunal is satisfied that the process of execution of the orders of the Tribunal issued on

29

th

September 2016

was contrary to the provisions of

section 14 of Cap 301.

All in all, the Tribunal is satisfied that it is in the interest of justice that the orders issued on

29

th

September 2016

be set aside so that the Tenant’s reference can be heard and determined. The Tenant and the Tenant’s advocate’s failure to attend the Tribunal is what occasioned the orders of the Tribunal issued on

29

th

September 2016.

The Landlord is entitled to throw away costs.

In the premises the Tribunal makes the following orders;

1. The Tenant’s application dated

5

th

October 2016

is allowed.

2. The Landlord’s preliminary objection dated

6

th

October 2016

is dismissed.

3. The orders of the Tribunal issued on

29

th

September 2016

are hereby set aside.

4. The Tenant’s reference is hereby reinstated for hearing.

5.

The Tenant shall pay the Landlord thrown away costs assessed at

shs 20,000/-.

6. The thrown away costs shall be paid on or before

31

st

December 2016

.

7. Parties shall take hearing dates of the reference at the registry on priority basis.

Ruling delivered this 16

th

day of December 2016

in the presence of

Kithinji

for the

Tenant

,

Babu

holding brief for

Kangiri

for the

Landlord.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL