Polycarp Makatian, hereinafter referred to as the appellant is aggrieved by orders of Hon. A Muma learned vice chairman to Business Premises Rent Tribunal delivered on 21st February 2022. In the Business Premises Tribunal in Nakuru B.P.R.T case number E058 of 2021 and has appealed to this court against the whole ruling of the Tribunal. He seeks reliefs that that the Orders of the Honorable tribunal dated 21st day of February 2022 holding that the tribunal had no jurisdiction be reviewed with a view to being set aside.
The application dated the 27th day of January 2022 and the interim orders thereof be and are hereby re-instated and extended pending the hearing and determination of the pending Reference .The respondent do bear the-costs of this Appeal.
The background of this matter is that the appellant filed an application dated 27th January 2022 seeking orders that the
Ex parte Orders made on the 24th day of January 2022 dismissing the Tenant/Applicant's for non-attendance and or for want of prosecution be reviewed with a view to being set aside and the application dated the 11th day of January 2022 be reinstated and fixed for inter parties hearing and determination on merits.
The applicant further sought orders that the interim orders of injunction issued on the 17th day of December 2021, reinstated and extended on the 14th day of January 2022 be further reinstated and extended pending inter parties hearing and determination of the Tenant/Applicant's application dated the 11th day of January 2022 and the application dated the 8th day of 2021 respectively and or pending further Orders of the tribunal.
He also sought an Order of Injunction restraining the Landlord/Respondent from Auctioning and or authorizing the Attaching auctioneers to dispose the Tenant/Applicant's proclaimed and or attached goods, offering for lease, leasing, fixing new shelves, and or placing the same in the hands of any third party pending inter parties hearing and determination the Tenant/Applicant's application dated the 11th day of January 2022.
He also applied for an Order restraining the Landlord/Respondent herein from Auctioning and or authorizing the Attaching auctioneers to dispose off the Tenant/Applicant's proclaimed and or attached goods, offering for lease, leasing fixing new shelves, and or placing the same in the hands of any third party pending inter parties hearing and determination this application inter parties and or pending hearing and determination of the Tenant/Applicant's Reference herein. The Landlord/Respondent as well as Sarah Munge T/A Sanjomu Auctioneers, the Attaching Auctioneers be compelled to supply the Tenant/Applicant with an inventory of the all the Tenant/Applicants proclaimed and or attached goods from the demised premises located on Plot No. 580 Block within Narok Township pending hearing and determination of the application herein and or pending further Orders of the Tribunal.
The Landlord/Respondent be compelled to restore the Tenant/Applicant into the demised premises as well as to have the Tenant/Applicant's proclaimed and or attached goods returned into the demised premises located on Plot No. 580 Block within Narok Township pending hearing and determination of the application herein and or pending the hearing and determination of the Reference herein
When the matter came up for hearing before the Chairman Business Premises Rent Tribunal Hon A Muma in 21 February 2022, in the presence of all parties, Mr Kilele for the applicant submitted that they requested the orders sought as the tenancy was to end in April of the said year. The auctioneer was still holding the goods. The landlord stated that he was given the orders to remove the appellant. He had taken the items and given the house to someone else.
The court found that it had no jurisdiction as there was no tenant landlord relationship and as distress had proceeded and a new tenant was in place.
The appellant submits that the application dated 27th January 2022 was technically struck out even without affording the appellant a chance to be heard. The appellant argues that the court should invoke its jurisdiction to ensure a fair hearing. In this case, the appellant argues that the court declined jurisdiction without explaining the merits of the case thus depriving the appellant to right to be heard.
I have considered the appeal and the submissions on record and do find that the right to be heard is sacrosanct and cannot be wished away.
Article 50(1) provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.
The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly.
The record of proceedings on 21st February 2023 does not show that the parties were given an opportunity to address the court on the issue of jurisdiction and therefore it appears that the application dated 27th January 2022 was technically struck out for lack of jurisdiction without affording the parties a hearing. The honorable chairman gave the reasons for his decision as being the fact that a new tenant was in occupation of the premises but it is not shown how that fact was brought to the Tribunals attention.
This court finds that due to the fact that the appellant was not heard before the decision was made, the appeal succeeds. I do grant orders that The application dated the 27th day of January 2022 and the interim orders thereof be and are hereby re-instated and extended pending the hearing and determination of the pending Reference .The respondent do bear the-costs of this Appeal. The application to be determined on merits by the chairperson other that Hon Muma.
The application dated the 27th day of January 2022 and the interim orders thereof be and are hereby re-instated and extended pending the hearing and determination of the pending Reference .The respondent do bear the-costs of this Appeal.
The background of this matter is that the appellant filed an application dated 27th January 2022 seeking orders that the
Ex parte Orders made on the 24th day of January 2022 dismissing the Tenant/Applicant's for non-attendance and or for want of prosecution be reviewed with a view to being set aside and the application dated the 11th day of January 2022 be reinstated and fixed for inter parties hearing and determination on merits.
The applicant further sought orders that the interim orders of injunction issued on the 17th day of December 2021, reinstated and extended on the 14th day of January 2022 be further reinstated and extended pending inter parties hearing and determination of the Tenant/Applicant's application dated the 11th day of January 2022 and the application dated the 8th day of 2021 respectively and or pending further Orders of the tribunal.
He also sought an Order of Injunction restraining the Landlord/Respondent from Auctioning and or authorizing the Attaching auctioneers to dispose the Tenant/Applicant's proclaimed and or attached goods, offering for lease, leasing, fixing new shelves, and or placing the same in the hands of any third party pending inter parties hearing and determination the Tenant/Applicant's application dated the 11th day of January 2022.
He also applied for an Order restraining the Landlord/Respondent herein from Auctioning and or authorizing the Attaching auctioneers to dispose off the Tenant/Applicant's proclaimed and or attached goods, offering for lease, leasing fixing new shelves, and or placing the same in the hands of any third party pending inter parties hearing and determination this application inter parties and or pending hearing and determination of the Tenant/Applicant's Reference herein. The Landlord/Respondent as well as Sarah Munge T/A Sanjomu Auctioneers, the Attaching Auctioneers be compelled to supply the Tenant/Applicant with an inventory of the all the Tenant/Applicants proclaimed and or attached goods from the demised premises located on Plot No. 580 Block within Narok Township pending hearing and determination of the application herein and or pending further Orders of the Tribunal.
The Landlord/Respondent be compelled to restore the Tenant/Applicant into the demised premises as well as to have the Tenant/Applicant's proclaimed and or attached goods returned into the demised premises located on Plot No. 580 Block within Narok Township pending hearing and determination of the application herein and or pending the hearing and determination of the Reference herein
When the matter came up for hearing before the Chairman Business Premises Rent Tribunal Hon A Muma in 21 February 2022, in the presence of all parties, Mr Kilele for the applicant submitted that they requested the orders sought as the tenancy was to end in April of the said year. The auctioneer was still holding the goods. The landlord stated that he was given the orders to remove the appellant. He had taken the items and given the house to someone else.
The court found that it had no jurisdiction as there was no tenant landlord relationship and as distress had proceeded and a new tenant was in place.
The appellant submits that the application dated 27th January 2022 was technically struck out even without affording the appellant a chance to be heard. The appellant argues that the court should invoke its jurisdiction to ensure a fair hearing. In this case, the appellant argues that the court declined jurisdiction without explaining the merits of the case thus depriving the appellant to right to be heard.
I have considered the appeal and the submissions on record and do find that the right to be heard is sacrosanct and cannot be wished away.
Article 50(1) provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.
The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly.
The record of proceedings on 21st February 2023 does not show that the parties were given an opportunity to address the court on the issue of jurisdiction and therefore it appears that the application dated 27th January 2022 was technically struck out for lack of jurisdiction without affording the parties a hearing. The honorable chairman gave the reasons for his decision as being the fact that a new tenant was in occupation of the premises but it is not shown how that fact was brought to the Tribunals attention.
This court finds that due to the fact that the appellant was not heard before the decision was made, the appeal succeeds. I do grant orders that The application dated the 27th day of January 2022 and the interim orders thereof be and are hereby re-instated and extended pending the hearing and determination of the pending Reference .The respondent do bear the-costs of this Appeal. The application to be determined on merits by the chairperson other that Hon Muma.