(Being an Appeal from the decision of the Business Premises Rent Tribunal (BPRT) made on 15th August 2024 dismissing the Appellant’s application dated 31st July 2024 after the Appellant failed to attend court to prosecute his application)
JUDGMENT
1. This Appeal arises from the decision of the Business Premises Rent Tribunal (BPRT) made on 15th August 2024 dismissing an application by the appellant dated 31st July 2024. Through the application, the appellant inter alia sought an order for repossession of the business premises situated in the parcel of land known as LR No.6585/216 Nyahururu Municipality (suit premises).
2. The dismissal of the appellant’s application was occasioned by the Appellant’s failure to attend court to prosecute the application. Instead of applying for setting aside of the order for dismissal under Order 12, Rule 7 of the Civil Procedure Rules, which gives discretionary power to the trial court to set aside its orders, the Appellant filed the instant Appeal.
3. Whilst the Tribunal merely dismissed the appellant’s application dated 31st July 2024 on account of the appellant’s failure to attend court to prosecute her application, the appellant has, in her appeal, proceeded as if her application was heard and determined by the Tribunal on its merits or as if the Tribunal was obligated to hear and determine her application despite her none appearance in court to prosecute her application. In that regard see the grounds of Appeal taken up by the Appellant, which are as follows:
i) The learned Vice Chairman erred in law and fact by making a finding that the Tribunal lacked jurisdiction to hear and determine application dated 31st July 2024;
ii) The learned Vice Chairman erred in law and fact in dismissing the application dated 31st July 2024.
iii) The learned Vice Chairman erred in law and fact by failing to find that the Tribunal was clothed with the necessary jurisdiction to vary or rescind any order made by it ;
iv) The learned Vice Chairman erred in law and fact by failing to find that the appellant could only seek recourse to the Tribunal for setting aside of ex parte orders that led to her eviction from L.R 6585/216;
v) The learned Vice Chairman erred in law and fact by failing to find that the Tribunal lacked jurisdiction to give the orders of 25th March 2024;
4. The appellant seeks the following reliefs/orders:
a) The ruling delivered on 15th August 2024 be set aside.
b) The orders issued on 25th March 2024 be declared null and void.
c) The appellant be allowed to continue possessing and occupying half undivided commercial and residential premise on L.R 6585/216.
d) The costs of this appeal and the proceedings before the Business Premises Rent Tribunal in BPRT No.E036 of 2024 (Nakuru) be paid by the respondent.
5. Pursuant to directions given on 21st June 2026 that the Appeal be heard by way of written submissions, parties to the Appeal filed submissions which I have read and considered.
6. In her submissions dated 16th June 2026, the Appellant has identified 5 issues for the court’s determination. These are:
i) Whether the appellant occupied and possessed the suit premises by virtue of her late husband’s purchase of the same, pursuant to a sale agreement dated 12th November 1990 and not as a tenant of the respondent;
ii) Whether the Tribunal had jurisdiction to issue the eviction orders dated 25th March 2026;
iii) Whether the Appellant was served with the reference and application dated 8th March 2024.
iv) Whether the learned Vice Chairman properly exercised her discretion in dismissing the Appellant’s application dated 31st July 2024.
v) Whether the Appellant is entitled to the orders sought.
7. On her part, the respondent, in her submissions dated 10th July 2026, has identified the following as the issues for the court’s determination:-
i) Whether a receiving party that fails to file a reference to the Tribunal can seek repossession of premises from the Tribunal;
ii) Whether the learned Vice Chairman erred in dismissing the application dated 31st July 2024.
iii) Whether this court can take extra evidence not considered at the Tribunal level;
iv) Who should bear the costs of the appeal?
8. For reasons to be giving hereunder, I will not delve into the submissions made by the parties, particularly, on issues numbers (i), (ii) and (iii) in the appellant’s submissions and issues number (i) and (iii) in the respondent’s submissions.
9. As pointed out herein above, the instant Appeal is premised on the decision of the Vice Chairman of the BPRT made on 15th August 2024 in respect of the appellant’s application dated 31st July, 2024.
10. The Record of Appeal shows that on 15th August 2024, the learned Vice Chairman of the Tribunal, Hon. Patricia May, rendered herself as follows concerning the appellant’s application dated 31st July, 2024:-
“Application dated 31.7.2024 by the tenant is hereby dismissed. She is not here to prosecute her application.
Orders of 31.7.2024 and 25.3.2024 to revert. File marked closed.”
11. The orders of 31st July, 2024 and 25th March, 2024 referenced by the Hon. Vice Chairman of the Tribunal, relate to the orders that had been given by the Tribunal in favour of the Respondent authorizing her to evict the Appellant from the suit premises. On 31st July 2024, the respondent informed the Court that the Appellant had been evicted from the suit premises leading to issuance by the Tribunal of the following order:
“Matter can now be marked as settled as reference is allowed.”
12. The Record of Appeal further shows that through the application dated 31st July 2024, which was dismissed by the Tribunal, the Appellant inter alia sought to set aside the order issued on 25th March, 2024 allowing her eviction from the suit premises and all consequential orders. The appellant also prayed that she be allowed to take back possession of the suit premises pending the hearing and determination of the application or further orders of the Tribunal.
13. Whereas the Tribunal did not hear and determine the appellant’s application dated 31st July, 2024 on account of the applicant’s failure to attend Court, instead of applying for an order to set aside the order of dismissal of her application on account of none attendance, the Appellant filed the instant Appeal challenging the decision of the Tribunal as if, the Tribunal had heard her application and dismissed it on its merits or was obligated to hear and determine her application on its merit despite her failure to attend court to prosecute it.
14. Given the fact that the Appellant’s application for setting aside the orders given on 25th March, 2024 authorizing the eviction of the Appellant was not heard on its merits but on account of non-appearance of the Appellant to prosecute her application, the sole issue that arises from the decision of the Tribunal is whether it erred by dismissing the appellant’s application, in the circumstances.
15. Concerning that issue, the appellant submits/addresses the Court as follows;
“The application dated 31st July 2024 sought restoration of the Appellant into possession of the suit premises and the setting aside of the eviction orders of 25th March 2024 which were issued ex parte. The application raised serious questions regarding the appellant’s occupation of the premises, the jurisdiction of the Tribunal to hear the matter and the assertion that the eviction orders were obtained without service. On 15th August 2024, the learned Vice Chair dismissed the said application for non-attendance and directed that the orders issued on 25th March 2024 to revert. The effect of the dismissal was to leave standing the eviction orders that had already disposed the appellant from the premises she had occupied for over thirty four years without any determination of the substantive grievances raised in her application. The appellant is inviting this Honourable Court to exercise its discretion and set aside the orders of 15th August 2024 that dismissed the application dated 31st July 2024. The jurisdiction of the court to review or set aside its decisions is wide and unfettered.
In Shah v Mbogo and Another (1967)EA 116, the Court of Appeal of East Africa held that:
“……………………………………………………………………..”
It is our humble submission that the court’s main mandate is to do justice to parties, exercise the discretion judiciously to avoid injustice resulting from accident, inadvertence or excusable mistake. The dismissal of the application resulted in substantial prejudice to the appellant and effectively denied her an opportunity to ventilate her grievances concerning the eviction orders. The appellant respectively submits that the nature of the dispute and the consequences flowing from the impugned orders warranted substantive consideration of issues raised in her application and ought to have been heard on its merits.”
16.On her part, the respondent has submitted /addressed the Court as follows concerning the issue;
“As highlighted elsewhere in these submissions, the appellant filed her application dated 31st July 2024 which was slated for hearing, the counsel for the respondent appeared before the tribunal but the appellant or her counsel did not show up as is her habit for the hearing before the tribunal, the honourable Tribunal heard the respondent who sought for the dismissal of the appellant’s case and the application was dismissed for non-attendance.
Order 12 rule 3 of the Civil Procedure Rules provide thus
1. If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only defendant attends and admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.
The record will bear the respondent witness, on page 40 of the Record of Appeal, that the application was slated for hearing before Hon. Patricia May, on 15.8.2024 and there was no appearance by the appellant and the Tribunal was therefore right under Order 12 rule 3 to dismiss the application. Therefore, the submission by the appellant that the learned Vice Chairman erred in law and fact to dismiss her application is erroneous and misleading as it can only be blamed on his unwillingness to prosecute the same. Equity aids the vigilant not indolent. The appellant through conduct had no intention to prosecute her case. It is, therefore, the respondent’s submission that the orders of the Tribunal issued on 15.8.2024 should not be disturbed as they are proper.
Additionally, the application dated 31st July 2024 sought restoration of the appellant into possession of the suit premises and the setting aside of the eviction orders. The Court of Appeal in Narshidas & Company Limited vs. Nyali Air Conditioning and Refrigeration Services Ltd Civil Appeal No 205 of 1995 held “………………………………..”
In view of the above holding by the Superior Court, it is the respondent’s submission that the Honourable Vice Chairman correctly exercised his discretion as the tribunal did not have powers to order recovery of possession from the landlord to restore the tenant back to the premises this could only be done by Civil Court.”
16. In discharge of the duty vested in this Court as the first Appellate Court, I have considered the circumstances that led to the dismissal of the Appellant’s application; the same being non-attendance by the Appellant before the Tribunal to prosecute her application on the date the same was slated for hearing.
17. Whilst the Appellant contends that on account of the weighty issues of law and fact raised in her application, the Tribunal ought not to have dismissed her application, I agree with the respondent’s submission that under Order 12 Rule 3 of the Civil Procedure Rules, the Tribunal had power to dismiss the Appellant’s application for none attendance.
18. I hasten to add that the provisions of Order 12 Rule 3 of the Civil Procedure Rules are couched in mandatory terms such that the Tribunal, unless there existed a good reason not to dismiss the application, was legally obligated to dismiss the application on account of none attendance by the Appellant to prosecute her application. The language used in Order 12 Rule of the Civil Procedure Rules is “the suit shall be dismissed” and NOT “the suit may be dismissed.
19. A litigant whose suit or application is dismissed under Order 12 Rule 3 of the Civil Procedure Rules is not without recourse. Order 12 Rule 7 of the Civil Procedure Rules provide for an avenue, which a litigant whose suit/application suffers the fate provided for in Order 12 Rule 3 of the Civil Procedure Rules may use to reinstate their suit/application for hearing namely application for setting aside of the order of dismissal of the suit or application. In that regard, see the said order which provides as follows:
“Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the judgment or order upon such terms as may be just”.
20. In the instant case, instead of using the avenue provided for challenging an order of dismissal, the Appellant filed the instant Appeal, challenging the decision of the learned Vice Chair of the BPRT on what he terms wrong exercise of her discretionary power.
21. Other than arguing that her application raised weighty issues of law and the fact which ought to have been considered by the Tribunal on their merits, the Appellant has neither offered explanation for his failure to apply to the Tribunal for setting aside the order nor given any reasons for her failure to appear before the Tribunal for the hearing of her application.
22. In the circumstances of this case, where the Appellant has neither accounted for his failure to use the procedure provided by law for challenging an order of dismissal of a suit or application for non- attendance nor offered any reason for his failure to attend the Tribunal for hearing of her application, the Appellant cannot be heard to say or claim that she was denied an opportunity to be heard on her application.
23. The instant appeal, to the extent that it addresses issues that ought to have been canvassed before the Tribunal, as the Court of first instance and which issues were on account of dismissal of the appellant’s application for non-attendance not heard and determined by the Tribunal on their merit, is ill-advised and bad in law as it invites this Court to hear and determine issues it has no jurisdiction to hear and determine as an appellate Court.
24. It is trite law that the issues to be determined in an Appeal stem from the pleadings filed by the parties and the decision made by the trial court in respect thereof. In the instant case, the only decision made by the trial court, the Tribunal, is to dismiss the application of the Appellant dated 31st July 2024 for non-attendance. The Tribunal did not make any determination on the issues of law and fact raised in the Appellant’s application which the Tribunal dismissed to warrant the Appellant inviting this Court to address those issues in its appellate jurisdiction.
25. The upshot of the foregoing is that I find the instant Appeal to be lacking in merit and dismiss it with costs to the Respondent.
Judgment dated, signed and delivered at Nyahururu this 16th day of September, 2026 through Microsoft teams
In the presence of:-
Ms Rotich h/b for Mr Komu for the Appellant
Mr. Mbugua for the Respondent
Court Assistant: Bedan
JUDGMENT
1. This Appeal arises from the decision of the Business Premises Rent Tribunal (BPRT) made on 15th August 2024 dismissing an application by the appellant dated 31st July 2024. Through the application, the appellant inter alia sought an order for repossession of the business premises situated in the parcel of land known as LR No.6585/216 Nyahururu Municipality (suit premises).
2. The dismissal of the appellant’s application was occasioned by the Appellant’s failure to attend court to prosecute the application. Instead of applying for setting aside of the order for dismissal under Order 12, Rule 7 of the Civil Procedure Rules, which gives discretionary power to the trial court to set aside its orders, the Appellant filed the instant Appeal.
3. Whilst the Tribunal merely dismissed the appellant’s application dated 31st July 2024 on account of the appellant’s failure to attend court to prosecute her application, the appellant has, in her appeal, proceeded as if her application was heard and determined by the Tribunal on its merits or as if the Tribunal was obligated to hear and determine her application despite her none appearance in court to prosecute her application. In that regard see the grounds of Appeal taken up by the Appellant, which are as follows:
i) The learned Vice Chairman erred in law and fact by making a finding that the Tribunal lacked jurisdiction to hear and determine application dated 31st July 2024;
ii) The learned Vice Chairman erred in law and fact in dismissing the application dated 31st July 2024.
iii) The learned Vice Chairman erred in law and fact by failing to find that the Tribunal was clothed with the necessary jurisdiction to vary or rescind any order made by it ;
iv) The learned Vice Chairman erred in law and fact by failing to find that the appellant could only seek recourse to the Tribunal for setting aside of ex parte orders that led to her eviction from L.R 6585/216;
v) The learned Vice Chairman erred in law and fact by failing to find that the Tribunal lacked jurisdiction to give the orders of 25th March 2024;
4. The appellant seeks the following reliefs/orders:
a) The ruling delivered on 15th August 2024 be set aside.
b) The orders issued on 25th March 2024 be declared null and void.
c) The appellant be allowed to continue possessing and occupying half undivided commercial and residential premise on L.R 6585/216.
d) The costs of this appeal and the proceedings before the Business Premises Rent Tribunal in BPRT No.E036 of 2024 (Nakuru) be paid by the respondent.
5. Pursuant to directions given on 21st June 2026 that the Appeal be heard by way of written submissions, parties to the Appeal filed submissions which I have read and considered.
6. In her submissions dated 16th June 2026, the Appellant has identified 5 issues for the court’s determination. These are:
i) Whether the appellant occupied and possessed the suit premises by virtue of her late husband’s purchase of the same, pursuant to a sale agreement dated 12th November 1990 and not as a tenant of the respondent;
ii) Whether the Tribunal had jurisdiction to issue the eviction orders dated 25th March 2026;
iii) Whether the Appellant was served with the reference and application dated 8th March 2024.
iv) Whether the learned Vice Chairman properly exercised her discretion in dismissing the Appellant’s application dated 31st July 2024.
v) Whether the Appellant is entitled to the orders sought.
7. On her part, the respondent, in her submissions dated 10th July 2026, has identified the following as the issues for the court’s determination:-
i) Whether a receiving party that fails to file a reference to the Tribunal can seek repossession of premises from the Tribunal;
ii) Whether the learned Vice Chairman erred in dismissing the application dated 31st July 2024.
iii) Whether this court can take extra evidence not considered at the Tribunal level;
iv) Who should bear the costs of the appeal?
8. For reasons to be giving hereunder, I will not delve into the submissions made by the parties, particularly, on issues numbers (i), (ii) and (iii) in the appellant’s submissions and issues number (i) and (iii) in the respondent’s submissions.
9. As pointed out herein above, the instant Appeal is premised on the decision of the Vice Chairman of the BPRT made on 15th August 2024 in respect of the appellant’s application dated 31st July, 2024.
10. The Record of Appeal shows that on 15th August 2024, the learned Vice Chairman of the Tribunal, Hon. Patricia May, rendered herself as follows concerning the appellant’s application dated 31st July, 2024:-
“Application dated 31.7.2024 by the tenant is hereby dismissed. She is not here to prosecute her application.
Orders of 31.7.2024 and 25.3.2024 to revert. File marked closed.”
11. The orders of 31st July, 2024 and 25th March, 2024 referenced by the Hon. Vice Chairman of the Tribunal, relate to the orders that had been given by the Tribunal in favour of the Respondent authorizing her to evict the Appellant from the suit premises. On 31st July 2024, the respondent informed the Court that the Appellant had been evicted from the suit premises leading to issuance by the Tribunal of the following order:
“Matter can now be marked as settled as reference is allowed.”
12. The Record of Appeal further shows that through the application dated 31st July 2024, which was dismissed by the Tribunal, the Appellant inter alia sought to set aside the order issued on 25th March, 2024 allowing her eviction from the suit premises and all consequential orders. The appellant also prayed that she be allowed to take back possession of the suit premises pending the hearing and determination of the application or further orders of the Tribunal.
13. Whereas the Tribunal did not hear and determine the appellant’s application dated 31st July, 2024 on account of the applicant’s failure to attend Court, instead of applying for an order to set aside the order of dismissal of her application on account of none attendance, the Appellant filed the instant Appeal challenging the decision of the Tribunal as if, the Tribunal had heard her application and dismissed it on its merits or was obligated to hear and determine her application on its merit despite her failure to attend court to prosecute it.
14. Given the fact that the Appellant’s application for setting aside the orders given on 25th March, 2024 authorizing the eviction of the Appellant was not heard on its merits but on account of non-appearance of the Appellant to prosecute her application, the sole issue that arises from the decision of the Tribunal is whether it erred by dismissing the appellant’s application, in the circumstances.
15. Concerning that issue, the appellant submits/addresses the Court as follows;
“The application dated 31st July 2024 sought restoration of the Appellant into possession of the suit premises and the setting aside of the eviction orders of 25th March 2024 which were issued ex parte. The application raised serious questions regarding the appellant’s occupation of the premises, the jurisdiction of the Tribunal to hear the matter and the assertion that the eviction orders were obtained without service. On 15th August 2024, the learned Vice Chair dismissed the said application for non-attendance and directed that the orders issued on 25th March 2024 to revert. The effect of the dismissal was to leave standing the eviction orders that had already disposed the appellant from the premises she had occupied for over thirty four years without any determination of the substantive grievances raised in her application. The appellant is inviting this Honourable Court to exercise its discretion and set aside the orders of 15th August 2024 that dismissed the application dated 31st July 2024. The jurisdiction of the court to review or set aside its decisions is wide and unfettered.
In Shah v Mbogo and Another (1967)EA 116, the Court of Appeal of East Africa held that:
“……………………………………………………………………..”
It is our humble submission that the court’s main mandate is to do justice to parties, exercise the discretion judiciously to avoid injustice resulting from accident, inadvertence or excusable mistake. The dismissal of the application resulted in substantial prejudice to the appellant and effectively denied her an opportunity to ventilate her grievances concerning the eviction orders. The appellant respectively submits that the nature of the dispute and the consequences flowing from the impugned orders warranted substantive consideration of issues raised in her application and ought to have been heard on its merits.”
16.On her part, the respondent has submitted /addressed the Court as follows concerning the issue;
“As highlighted elsewhere in these submissions, the appellant filed her application dated 31st July 2024 which was slated for hearing, the counsel for the respondent appeared before the tribunal but the appellant or her counsel did not show up as is her habit for the hearing before the tribunal, the honourable Tribunal heard the respondent who sought for the dismissal of the appellant’s case and the application was dismissed for non-attendance.
Order 12 rule 3 of the Civil Procedure Rules provide thus
1. If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only defendant attends and admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.
The record will bear the respondent witness, on page 40 of the Record of Appeal, that the application was slated for hearing before Hon. Patricia May, on 15.8.2024 and there was no appearance by the appellant and the Tribunal was therefore right under Order 12 rule 3 to dismiss the application. Therefore, the submission by the appellant that the learned Vice Chairman erred in law and fact to dismiss her application is erroneous and misleading as it can only be blamed on his unwillingness to prosecute the same. Equity aids the vigilant not indolent. The appellant through conduct had no intention to prosecute her case. It is, therefore, the respondent’s submission that the orders of the Tribunal issued on 15.8.2024 should not be disturbed as they are proper.
Additionally, the application dated 31st July 2024 sought restoration of the appellant into possession of the suit premises and the setting aside of the eviction orders. The Court of Appeal in Narshidas & Company Limited vs. Nyali Air Conditioning and Refrigeration Services Ltd Civil Appeal No 205 of 1995 held “………………………………..”
In view of the above holding by the Superior Court, it is the respondent’s submission that the Honourable Vice Chairman correctly exercised his discretion as the tribunal did not have powers to order recovery of possession from the landlord to restore the tenant back to the premises this could only be done by Civil Court.”
16. In discharge of the duty vested in this Court as the first Appellate Court, I have considered the circumstances that led to the dismissal of the Appellant’s application; the same being non-attendance by the Appellant before the Tribunal to prosecute her application on the date the same was slated for hearing.
17. Whilst the Appellant contends that on account of the weighty issues of law and fact raised in her application, the Tribunal ought not to have dismissed her application, I agree with the respondent’s submission that under Order 12 Rule 3 of the Civil Procedure Rules, the Tribunal had power to dismiss the Appellant’s application for none attendance.
18. I hasten to add that the provisions of Order 12 Rule 3 of the Civil Procedure Rules are couched in mandatory terms such that the Tribunal, unless there existed a good reason not to dismiss the application, was legally obligated to dismiss the application on account of none attendance by the Appellant to prosecute her application. The language used in Order 12 Rule of the Civil Procedure Rules is “the suit shall be dismissed” and NOT “the suit may be dismissed.
19. A litigant whose suit or application is dismissed under Order 12 Rule 3 of the Civil Procedure Rules is not without recourse. Order 12 Rule 7 of the Civil Procedure Rules provide for an avenue, which a litigant whose suit/application suffers the fate provided for in Order 12 Rule 3 of the Civil Procedure Rules may use to reinstate their suit/application for hearing namely application for setting aside of the order of dismissal of the suit or application. In that regard, see the said order which provides as follows:
“Where under this Order judgment has been entered or the suit has been dismissed, the Court, on application, may set aside or vary the judgment or order upon such terms as may be just”.
20. In the instant case, instead of using the avenue provided for challenging an order of dismissal, the Appellant filed the instant Appeal, challenging the decision of the learned Vice Chair of the BPRT on what he terms wrong exercise of her discretionary power.
21. Other than arguing that her application raised weighty issues of law and the fact which ought to have been considered by the Tribunal on their merits, the Appellant has neither offered explanation for his failure to apply to the Tribunal for setting aside the order nor given any reasons for her failure to appear before the Tribunal for the hearing of her application.
22. In the circumstances of this case, where the Appellant has neither accounted for his failure to use the procedure provided by law for challenging an order of dismissal of a suit or application for non- attendance nor offered any reason for his failure to attend the Tribunal for hearing of her application, the Appellant cannot be heard to say or claim that she was denied an opportunity to be heard on her application.
23. The instant appeal, to the extent that it addresses issues that ought to have been canvassed before the Tribunal, as the Court of first instance and which issues were on account of dismissal of the appellant’s application for non-attendance not heard and determined by the Tribunal on their merit, is ill-advised and bad in law as it invites this Court to hear and determine issues it has no jurisdiction to hear and determine as an appellate Court.
24. It is trite law that the issues to be determined in an Appeal stem from the pleadings filed by the parties and the decision made by the trial court in respect thereof. In the instant case, the only decision made by the trial court, the Tribunal, is to dismiss the application of the Appellant dated 31st July 2024 for non-attendance. The Tribunal did not make any determination on the issues of law and fact raised in the Appellant’s application which the Tribunal dismissed to warrant the Appellant inviting this Court to address those issues in its appellate jurisdiction.
25. The upshot of the foregoing is that I find the instant Appeal to be lacking in merit and dismiss it with costs to the Respondent.
Judgment dated, signed and delivered at Nyahururu this 16th day of September, 2026 through Microsoft teams
In the presence of:-
Ms Rotich h/b for Mr Komu for the Appellant
Mr. Mbugua for the Respondent
Court Assistant: Bedan