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God's Worshippers in Spirit and Truth Ministry v Metto (Tribunal Case E012 of 2022) [2022] KEBPRT 218 (KLR) (18 July 2022) (Ruling)
Neutral citation:
[2022] KEBPRT 218 (KLR)
Republic of Kenya
Tribunal Case E012 of 2022
P May, Vice Chair
July 18, 2022
Between
God's Worshippers in Spirit and Truth Ministry
Applicant
and
Phoebe Metto
Respondent
Ruling
1.This ruling determines the application dated 31st March, 2022 filed by the tenant seeking orders of temporary injunction and the removal of the barriers to the demised premises which were used as a church.
2.The application is premised on the grounds as set forth in its face and those on the supporting affidavit sworn on even date. The applicant has stated that they have been paying rent religiously but were taken aback when they were purportedly served with a notice to terminate the tenancy.
3.The applicant states that the landlord erected a barrier blocking the entrance to the demised premises thus denying them access. Further that the church has 200 worshippers who stand to suffer in the event the orders sought are not granted.
4.The application was opposed vide the replying affidavit sworn on 12th April, 2022. The landlord maintains that the notice of termination was duly served thus the tenant ought to have vacated the demised premises as they did not file a reference within the prescribed timelines.
5.The parties elected to canvass the application by way of written submissions. There has been compliance by both parties. I have considered the affidavits and the submissions on record and would proceed as follows:
6.The tenant’s case can be summarized as hereunder. The tenant has dwelt on the argument that they deserve the orders sought.
7.That they have met the triple requirements set for the grant of orders of injunction as envisaged in the celebrated case of Giella vs Cassman Brown.
8.They have further attacked the landlord for being insincere in their pleadings by denying that they are tenants while on the other hand saying that they have made attempts to remove them. They therefore pray that the application should be allowed as prayed.
9.The landlord took a multi-faceted approach in attacking the application. First the landlord stated that the application is incurably defective as the tenant failed to file a reference within the prescribed timelines.
10.The landlord further stated that there is no proof of a tenancy relationship between the parties herein.
11.The landlord has further stated that there are ongoing demolitions thus the premises have been fenced off.
12.Finally, the landlord has denied that the tenant has met the threshold for the grant of injunctive orders.
13.In determining the present dispute, I am guided by the Constitution, Cap 301 and the attendant regulations. The first issue for determination in my view is whether the application is fatally defective.
14.There is no dispute that there was a notice to terminate tenancy dated 28th October, 2021 which was to take effect on 1st January, 2022. The tenant has however denied being served with the said notice stating that the same was served on a person who is a stranger to them.
15.The landlord did not attach any proof whatsoever to confirm service of the notice.
16.The landlord denied that the tenant is not in occupation of the demised premises but then went ahead to state that efforts to evict them have been futile.
17.The question of whether the notice was properly served could only be answered if evidence of service was adduced. In the absence of the same and informed by the provisions of Article 159 of the Constitution, I shall suo moto proceed to allow the application for leave to file reference out of time.
18.It is imperative to note that Section 6(1) of the Act however contains a proviso that grants discretion to the Tribunal for sufficient reason and on such conditions as it may think fit permit the filing of reference out of time notwithstanding that the receiving party has not complied with any of the requirements of the section.
19.Like every other discretion, the power to allow filing of a reference out of time is to be exercised judicially. It is not to be exercised capriciously or in order to aid an indolent litigant who is woken up from slumber through subsequent events. I will therefore issue appropriate directions to ensure that the ends of justice are met.
20.In view of the foregoing decisions and considering that the prejudice likely to be suffered by the Applicants far outweigh that which is bound to be suffered by the Respondent, I am of the firm view that the Applicants have given sufficient grounds upon which this Tribunal should exercise the discretion granted by section 6 of Cap. 301 in their favour.
21.Having made the above findings, I will now proceed to consider the merits of the prayers sought by the applicant.
22.I have considered the prayers for temporary injunction against the well-established triple requirements set out in the case of Giella vs Cassman Brown. The applicant has stated that they stand to suffer irreparable damage as their equipment are locked in the church. I am convinced that the grounds set out satisfy the grant of the said orders.
23.I am alive to the competing interests between the parties and the economic and social considerations at stake. There is need for the parties to Fastrack the hearing of the reference.
24.In the end , I shall make the following orders:a.The application dated 31st March, 2022 is allowed in terms of prayers b and c.b.The tenant is granted leave to file and serve the reference within 21 days together with the other statements and documents that they shall rely on during the hearing of the reference.c.The landlord shall upon receipt of the reference file and serve her documents and statement within 7 days.d.The parties shall fix a hearing date within 60 days.e.Each party shall bear their own cost.
It is so ordered.
RULING SIGNED, DATED AND DELIVERED THIS 18TH DAY OF JULY 2022.HON. P. MAYVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the absence of the parties.
