Ess Pee Investment v Degisat Services Limited

and Tenant (Shops, Hotels and Catering Establishments) Act; b) The effect of non-compliance with the above, or the service of a Notice that does not comply with the aforesaid provision of Section 4 of the Act would render such notice null and void ab initio; c) Being a nullity through the operation of the law, this Court lacks jurisdiction to entertain, and or regard such notice as legal, binding or effective in law; d) It is not disputed that the alleged Notice of Termination of the lease was vide a letter dated 13th February 2020 the contents of which are in contravention of section 4 of the Act; e) The reasons for termination of the lease and rent arrears were never the central issues before the Business Premises Tribunal. RULING Page 2 of 11 MSA. ELCA. 56 OF 2021

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2. That in view of the foregoing, the demand for rent arrears was unjustified, unconscionable and glaringly oppressive; 3. That facts brought before the Court were not complete since the Appellant left out crucial pleadings and proceedings before the Tribunal thereby compromising this court’s ability to accurately analyze and consider the facts, agreements and evidence tendered before the Tribunal to enable it arrive at an objective determination; and 4. That having regard to the documents left out in the Record of Appeal, there is reason to conclude that the decision to leave out the documents was deliberate and conveniently calculated to steal a match in favour of the landlord. 3. Ess Pee Ess Investment Ltd (the Landlord/Respondent) is opposed to the application. In a Replying Affidavit sworn by one of its directors Sharda Gupta on 9 th October 2025, the Respondent avers that judgment was delivered herein on RULING Page 3 of 11 MSA. ELCA. 56 OF 2021

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31st January 2025 and that the Tenant/Applicant has not explained the delay in filing the application. 4. The Respondent denies that the Record of Appeal was incomplete and avers that the same was served upon the Tenant’s previous Advocate Messrs Kamanza & Partners Advocates and they did not raise any issue about the incompleteness of the Record. It is the Respondent’s case that the present application is nothing but an afterthought with the aim of denying the fruits of its judgment. 5. I have carefully perused and considered both the application as well as the response thereto. I have similarly perused and considered the submissions and authorities placed before the Court by the Learned Advocates representing the parties. 6. On matters of review of a judgment Section 80 of the Civil Procedure Act, Cap, 21 provides as follows: RULING Page 4 of 11 MSA. ELCA. 56 OF 2021

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“Any person who considers himself aggrieved— a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. 7. On the other hand, Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: “1. (1) Any person considering himself aggrieved— (a) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or RULING Page 5 of 11 MSA. ELCA. 56 OF 2021

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error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. 8. As was held in Republic –vs- Public Procurement Administrative Review Board & 2 Others (2018) eKLR: “Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.” RULING Page 6 of 11 MSA. ELCA. 56 OF 2021

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9. In the matter before the Court, the application for review has been made some seven (7) months after the judgment was delivered on 31st January 2025. In the further Affidavit sworn by Nicholas Zani on behalf of the Applicant, the Applicant avers that the delay in filing the application was due to the fact that its previous Advocate was indisposed and that they were unable to locate him to collect the file and brief the new Advocates on record. 10. I did however find great difficulty in accepting that justification. From the record, it was evident that the Applicant’s current Advocates Messrs Wameyo Onyango & Associates Advocates came on record prior to the delivery of the judgment sought to be reviewed. Indeed, Mr. Wameyo Advocate was present representing the Applicant when the judgment was delivered on 31st January 2025. 11. In their application before the Court, the Applicant asserts that there was an error apparent on the face of the record in that the Court had found that this was a controlled tenancy RULING Page 7 of 11 MSA. ELCA. 56 OF 2021

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under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act but proceeded to dismiss the Tenant’s case even after finding that the Notice issued to the Tenant was not in accordance with the provisions of Section 4 of the Act. It was the Applicant’s case that given the condition of the demised premises, the demand for rent arrears was unjustified, unconscionable and glaringly oppressive. 12. As the Court of Appeal did hold in National Bank of Kenya Limited –vs- Ndung’u Njau (1997) KECA 71 (KLR) 27 th May 1997) (Judgment): “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous RULING Page 8 of 11 MSA. ELCA. 56 OF 2021

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conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” 13. In the matter before me, it was evident that in his judgment delivered on 31st January 2025, the Honourable Justice L.L. Naikuni did agree that there was a controlled tenancy between the Landlord and the Tenant herein. A perusal of Paragraph 45 of the Judgment however reveals the reason that the Learned Judge found that the termination of the tenancy justified. At the said Paragraph 45, the Learned Judge states as follows: “45. The provision of Section 7 of Cap. 301 contains grounds upon which a landlord may seek to terminate a controlled tenancy. Among the grounds itemized are commission of substantial breach by the tenant of his obligations under the tenancy or any other reason connected with the tenant’s use or management of the premises comprised in the tenancy. I therefore do not hesitate to hold, just like the trial court did, that this was RULING a controlled Page 9 of 11 tenancy. There was a MSA. ELCA. 56 OF 2021

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termination clause which gave liberty to the parties to terminate at any time and for any reason within the tenancy period. From the case at hand the Respondent had defaulted in rent payments and by the time this Court was retiring to write down this judgment the Respondent had been evicted and there was a new tenant in the suit premises.” 14. Arising from the foregoing, it was apparent that other than the form of the notice given, the Learned Judge had in dismissing the Tenant’s case considered other issues including the conduct of the parties as far as adherence to the terms of the tenancy were concerned. While the Applicant may be of the view that the Court had proceeded on an incorrect exposition of the law and that it had arrived at the wrong conclusion, it was clear to me that that cannot be the basis for a review of a judgment. 15. It follows that I did not find merit in the Motion dated 12 th August 2025 as amended on 3rd March 2026. The same is hereby dismissed with costs to the Respondent. RULING Page 10 of 11 MSA. ELCA. 56 OF 2021

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Ruling dated, signed and delivered in open court and virtually at Mombasa this 24th day of September, 2026. ………………………….. J.O. OLOLA JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) No Appearance for the Appellant c) Mr. Ochami holding brief for Wameyo Advocate for the Respondent RULING Page 11 of 11 MSA. ELCA. 56 OF 2021

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