Case ID:165102

James Gaichuru v Jeremiah Karani Themendu [2020] eKLR

Case Metadata

Case Number:

Tribunal Case 288 of 2017 (Nairobi)

Parties:

James Gaichuru v Jeremiah Karani Themendu

Date Delivered:

27 May 2020

Case Class:

Civil

Court:

Business Premises Rent Tribunal

Case Action:

Ruling

Judge(s):

Mbichi Mboroki - Chairman

Citation:

James Gaichuru v Jeremiah Karani Themendu [2020] eKLR

Court Division:

Tribunal

County:

Nairobi

Case Outcome:

Tenant’s application dismissed

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 288 OF 2017 (NAIROBI)

JAMES GAICHURU............................................................TENANT

VERSUS

JEREMIAH KARANI THEMENDU...........................LANDLORD

RULING

The Tenant/Applicant by the Applicant dated

17

th

December 2018

is seeking to set aside the orders of the Tribunal issued on

17

th

December 2018.

The record of the Tribunal shows the following. The Landlord’s application dated

5

th

November 2018

was certified as urgent and fixed for hearing on

17

th

December 2018.

On

17

th

December 2018,

the advocate for the Tenant and the Tenant did not attend court but were duly served. The Tribunal issued the following orders;

1. The orders issued on

5

th

July 2018

and

1

st

August 2018

are discharged forthwith.

2. The Landlord is allowed to levy distress and recover outstanding arrears of rent of

shs 95,000/-.

3. The Landlord is allowed to evict the Tenant from the suit premises upon the levying of distress.

4.

The Tenant shall pay the Landlord costs of the application assessed at

shs 20,000/-.

5. Costs shall be recovered as part of arrears of rent by way of distress.

The above orders are the ones which the Tenant/Applicant is seeking to have set aside. The Tenant’s application is supported by the affidavit of the advocate for the Tenant Kimandu Gichohi sworn on

17

th

December 2019.

The application by the Tenant is opposed by the Landlord. The advocate of the parties have filed written submissions which the Tribunal has read in details.

The following facts are not in dispute;

1. The advocate for the Tenant has not denied being served with the Landlord’s application dated

5

th

November 2018.

2. The advocate for the Tenant says that he was engaged at the Court of Appeal at

Nyeri in civil appeal

No 340/2014.

The core issue raised in the Landlord’s application dated

5

th

November 2018

was the issue of non-payment of rent by the Tenant. The arrears of rent stood at

shs 95,000/-.

The Tenant has not sworn any affidavit in this matter to address the issue of arrears of rent. The Tenant must satisfy the Tribunal hat he has a good defence to the Landlord’s claim. The Tenant’s advocate was served with the hearing notice to attend the Tribunal on

17

th

February 2018

on

2

nd

December 2019.

The Tenant’s advocate has not filed a replying affidavit to the application nor did they notify the Tenant to attend the Tribunal on

17

th

December 2018

. There is no material before the Tribunal to satisfy it that the Tenant has no arrears of rent. The advocates of the Tenant should have filed an affidavit by the Tenant showing that he has no arrears of rent.

The Tribunal is of the considered opinion that a court order cannot be set aside for the sake of it.

The advocate was not in court. The Tenant was not in court and there is no evidence that the Tenant has paid the arrears of rent.

All in all, the Tribunal is satisfied that the Tenant’s application dated

17

th

December 2018

has no merits.

The Tribunal makes the following orders;

1. The Tenant’s application dated

17

th

December 2018

is hereby dismissed with costs to the Landlord assessed at

shs 20,000/-.

2. The Landlord is at liberty to execute the orders issued on

17

th

December 2018

.

3. Costs shall be recovered by way of distress as part of arrears of rent.

Ruling

delivered this 27

th

day of May 2020 in the absence of the parties.

MBICHI MBOROKI

CHAIRMAN

BUSINESS PREMISES RENT TRIBUNAL