Maina & another v Alkarimjee & 3 others

Respondents’ reference for alteration of the Appellants’ monthly rent. 2. The material on record shows that 11.10.2024 the Tribunal made a ruling to the effect that it had no jurisdiction to entertain the respondents’ reference for alteration of the terms of the tenancy. Vide an application dated 07.11.2024 the respondents applied for a review of that order on jurisdiction and for their reference to be allowed once the Tribunal assumed jurisdiction. 3. The record shows that when the respondents’ application for review dated 07.11.2024 was listed for directions before the honourable Chairman of the Tribunal it was directed that the same shall be heard before Hon. A Muma on 21.11.2024. It was further ordered that the application be served and an affidavit of service filed. 4. When the matter was listed on 21.11.2024 the record shows that only the respondents’ advocates appeared and requested the Tribunal for a ruling date. The advocate informed the Tribunal that the application had been served and that it was not opposed. However, a perusal of the original file does not show any affidavit of service on record for the hearing of 21.11.2024. MOMBASA ELC CASE NO. E014 OF 2025 (JUDGMENT) Page 2

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5. By a ruling dated 04.02.2025 the Tribunal reviewed its earlier ruling declining jurisdiction on the basis that there was sufficient cause to do so under order 45 of the Civil Procedure Rules. The Tribunal held that there was an earlier ruling in the matter dated 09.09.2023 which affirmed the Tribunal’s jurisdiction to entertain the matter. It found that the later ruling of 11.10.2024 was made in error. As a result, the Tribunal proceeded to assume jurisdiction and then determined the Respondents’ reference dated 05.05.2023. 6. Being aggrieved by the Tribunal’s decision dated 04.02.2025 the appellants filed a memorandum of appeal dated 05.03.2025 raising 2 main grounds. The first ground was that the Tribunal erred in law in allowing the application for review when it was bound by the doctrine of functus officio. The second was that they were not accorded an opportunity of being heard on the application hence they were condemned unheard. 7. When the appeal was listed for directions, it was directed that it shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that the appellants filed submissions dated 16.12.2025 whereas the respondents’ submissions were dated 22.01.2026. MOMBASA ELC CASE NO. E014 OF 2025 (JUDGMENT) Page 3

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8. The court has considered the material and submissions on record. The court is of the opinion that the main question for determination is whether the Tribunal erred in law in allowing the respondents’ application dated 07.11.2024. 9. The appellants contended that they were not served with the application for review dated 07.11.2024 hence they were condemned unheard. The respondents submitted that the appellants were duly served and an affidavit of service sworn by one Duncan Ken on 21.11.2024 filed to demonstrate service. The respondents submitted that the appellants had conveniently omitted the said affidavit from the record of appeal. 10. The court has perused the original record of the Tribunal severally but has not come across the said affidavit. The respondents did not seek leave to file their copy of the said affidavit. As matters stand now, the court has no evidence of service of the application for review upon the appellants. The court has no access to the efiling portal of the Tribunal hence it is not possible to verify the alleged service upon the Appellants. In the event, the court finds no evidence of the service of the application for review on record. 11. Even if the court were to find that there was evidence of service of the application for review, the court is of the view that upon MOMBASA ELC CASE NO. E014 OF 2025 (JUDGMENT) Page 4

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reviewing its earlier ruling of 11.10.2023 on jurisdiction, the Tribunal ought to have accorded the parties an opportunity to canvass the application dated 05.05.2023 substantively. The court is thus of the view that the Tribunal short-circuited the legal process by directly determining the landlords’ reference without according the appellants an opportunity to be heard thereon. 12. The upshot of the foregoing is that the court is satisfied that there is merit in the appeal. There is no credible evidence on record to show that the appellants were properly served and accorded a fair opportunity of being heard on the landlords’ application dated 05.05.2023. The court has deliberately avoided delving into the merits of the application for review dated 07.11.2024 because the court intends to remit the said application to the Tribunal for hearing de novo. 13. For the foregoing reasons, the court make the following orders for disposal of the appeal: a) The appeal be and is hereby allowed. b) The ruling of the Tribunal dated 04.02.2025 is hereby set aside in its entirety. c) The respondents’ 07.11.2024 shall notice be heard of motion afresh dated before any member of the Tribunal other than Hon. A. Muma. MOMBASA ELC CASE NO. E014 OF 2025 (JUDGMENT) Page 5

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d) The appellants are hereby awarded costs of the appeal. It is so decided. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 17TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: Mr. Kariuki for appellant Mr Ali holding brief for Mr Hamza for the respondent Court Assistant: Hinga MOMBASA ELC CASE NO. E014 OF 2025 (JUDGMENT) Page 6

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