REPUBLIC OF KENYA

IN THE BUSINESS & RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO E740 OF 2021

JAMES MAMBOLEO……….……………………….…APPELLANT/APPLICANT
VERSUS
PAUL MBUGUA KANGETHE……………............. RESPONDENT/LANDLORD

(Being an Application for Review of the Judgement and Decree of the Business &
Rent Tribunal
of Hon. Gakuhi Chege delivered on 2nd November, 2022)

CERTIFICATE OF URGENCY

We, MITUGA AND COMPANY ADVOCATES having the conduct of this

matter, do hereby certify this Application as urgent deserving to be placed before
the Honourable Duty Vice Chair at the earliest opportune moment for reasons
that:

1. The Applicant is in danger of being unlawfully evicted from his lawful

premises pursuant to a judgement and decree of the Business and Rent
Tribunal (hereinafter, “the Tribunal”) delivered on 2nd November, 2022.

2. The Respondent has given an indication that he intends to execute the

Decree against the Applicant any time from 1st December, 2022.

3. The Applicant stands to suffer loss if the Respondent proceeds to execute

the said Decree against him.

4. It is in the interest of justice and fairness to grant the Orders sought.

5. The Applicant temporary stay of execution for a period of 30 days that had
been given by the tribunal has since lapsed.

Dated at Nairobi on this 30th Day of November, 2022

MITUGA & COMPANY ADVOCATES

ADVOCATES FOR THE APPLICANT
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Drawn and filed by: -
Mituga & Company
Advocates
View Park Towers
3rd Floor
Utalii Lane
P. O. Box 35253 - 00100
Nairobi
Email: omituga@yahoo.com

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 REPUBLIC OF KENYA
IN THE BUSINESS & RENT TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO E740 OF 2021

JAMES MAMBOLEO……….………………………………
APPLICANT/TENANT
VERSUS
PAUL MBUGUA KANGETHE……………............. RESPONDENT/LANDLORD

(Being an Application for Review of the Judgement & Decree of the Business & Rent
Tribunal
of Hon. Gakuhi Chege delivered on 2nd November, 2022)

NOTICE OF MOTION
(Under Section 1A, 3A, 3B and 80 of the Civil Procedure Act and Order 45 Rule 1
of the Civil Procedure rules and all other enabling provisions of the law)

TAKE NOTICE that this Honorable Court shall be moved on the

……………...day of …………...2022 at 9 O’clock in the forenoon or soon thereafter
when the counsel for the Applicant will be heard for ORDERS, THAT:

1. This application be certified urgent and be heard ex parte in the first instance.

2. Pending the hearing and determination of this Application, this Honourable

Court be pleased to review and stay its’ orders as against the Applicant
made on 2nd November 2022 ordering the Applicant to vacate from L.R NO.
Nairobi/Thiboro Township/25 forthwith and in default, be evicted
therefrom by a licensed auctioneer who shall be accorded security by the
OCS of the Police Station within whose jurisdiction the suit premises is
situate.

3. This Honourable Court be pleased to set aside any other ex-parte

application and any other subsequent proceedings which culminated into
the orders in this matter.

4. This Honourable Court grants the Applicant leave and/or an opportunity to

be heard and to put their case and defend their position in the suit.

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5. The Plaintiff’s advocate on record be stopped from taking any precipitate
action pending the hearing and determination of this Application.

6. That the trial case be taken for re-trial before another Vice
Chairperson/magistrate of competent jurisdiction other than Hon. Gakuhi
Chege.

WHICH APPLICATION is based on the following grounds and supported by

the annexed Affidavit of JAMES MAMBOLEO and on any other ground to be
adduced at the hearing hereof: -

a. That on the 2nd November, 2022, the Tribunal entered judgement against
the Applicant in Tribunal Case No. E740 of 2021, James Mamboleo -
versus- Paul Mbugua Kangethe.

b. That the Judgement was entered when the Hon. Vice Chairperson elected
to proceed to hear the Respondent’s case in absence of the Applicant.

c. That the hearing, pursuant to Order 12 Rule 3, ought to have been

dismissed for non-attendance of the Plaintiff.

d. The Respondent intends on enforcing the decree, arising from decree of

the Tribunal, arising from the judgement delivered on 2 nd November, 2022.
The Respondent has given an indication that he intends to execute the
Decree against the Applicant.

e. The court failed to appreciate the reality of the difficulty of the Applicant
herein to attend to the full hearing of the matter while sick and under
medication.

f. Failure to afford the Applicant an opportunity to prosecute the suit before

the final orders were issued ex parte offends Article 47 of the Constitution
and provisions of the Fair Administrative Action Act enacted thereunder.

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g. The conduct of the tribunal on the Hearing date and the judgement
entered forthwith, was illegal, unfair incorrect, unreasonable and
disproportionate to the tenets of the Principles of Art. 10 and 50(1) of the
Constitution of Kenya hence ought to be stayed and ultimately set aside.

h. The Applicant’s Application may be rendered nugatory should the

Respondent execute the decree before the same is heard and determined.

i. The Applicant stands to suffer substantial loss if the Respondent proceeds

to execute the said Decree against him and the Review later succeeds.

j. The Respondent shall suffer no prejudice whatsoever if this application is

allowed as prayed.

k. It is just and equitable that the Defendants be heard on a priority basis so

that their grievances are remedied without delay.

l. It is therefore, in the interest of justice that the prayers sought herein be

granted as prayed.

Dated at Nairobi on this 30th Day of November, 2022

MITUGA & COMPANY ADVOCATES

ADVOCATES FOR THE APPLICANT

Drawn and filed by: -

Mituga & Company
Advocates
View Park Towers
3rd Floor
Utalii Lane
P. O. Box 35253 - 00100
Nairobi
Email: omituga@yahoo.com

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To be Served Upon
L.N Muchiri & Co. Advocates
Santa Plaza
2nd Floor
Dagoretti Corner, Ngong Road
P.O Box 32412-00600
Nairobi.
Tel No: 0721-242-489
Email: Imuchirirah@yahoo.com

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 REPUBLIC OF KENYA
IN THE BUSINESS & RENT TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO E740 OF 2021

JAMES MAMBOLEO……….……………………….…APPELLANT/APPLICANT
VERSUS
PAUL MBUGUA KANGETHE……………............. RESPONDENT/LANDLORD

(Being an Application for Review of the Judgement & Decree of the Business & Rent
Tribunal
of Hon. Gakuhi Chege delivered on 2nd November, 2022)

SUPPORTING AFFIDAVIT

I, JAMES MAMBOLEO, a resident of Nairobi make oath and state as follows,

THAT: -

1. I am the Applicant herein with full knowledge of the facts attending to this
case thus competent to swear this affidavit.

2. I am in danger of being evicted pursuant to a judgement and decree dated

2nd November 2022 delivered by Hon. Gakuhi Chege, the Vice Chairperson
of the Business and Rent Tribunal.

3. The Judgement in Tribunal Case No. E740 of 2021 delivered by the

Honourable Vice Chairperson was in the following terms in part:

(a) The Respondent’s notice to terminate the Applicant’s tenancy dated 9 th

November 2021 is hereby upheld/approved.

(b) The Applicant shall vacate from L.R NO. Nairobi/Thiboro

Township/25 forthwith and in default shall be evicted therefrom by a
licensed auctioneer who shall be accorded security by the OCS of the
Police Station within whose jurisdiction the suit premises is situate.

(c) The Applicant shall pay costs of Kshs. 25,000/- to the Respondent and
clear any rent in arrears failing which the Respondent shall be a
liberty to use lawful means to recover the same.

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(Annexed hereto and Marked A is a true copy of the Tribunal’s Judgement dated 2 nd
November, 2022.)

4. I have been informed by my advocates on record, which information I verily

believe to be true, that the Respondent may enforce the decree arising from
the judgement delivered on 2 nd November 2022 unless this Honourable
Court grants the Orders sought herein.

5. The Respondent has served me with an indication of his intention to execute

the Decree against me vide the Eviction Notice dated 23 rd November, 2022
(Annexed and Marked B is a true copy of Eviction Notice dated 23 rd
November, 2022).

6. On the hearing date, I was sick but managed to instruct the firm of Messrs.
Nyamweya Mamboleo Advocates to act on my behalf. The said firm was yet
to file its Notice of Appointment but they verily informed me that the same
would have been filed and served before the time allocated for hearing save
for internet and technological failure.

7. By the time the hearing was about to start, the said firm had not been
successful in filing the Notice of Appointment and thus called me advising
that I log into the session. I was under medication and yet to be reviewed by
my doctors and thus could not proceed with the hearing.

8. I nonetheless, logged into the virtual session while the court was
proceeding. The Honourable Vice Chairperson’s call dropped and I was
never able to address court myself.

9. I have been informed by advocates on record, which information I verily

believe to be true, that from their perusal of the tribunal’s file, I officially
never attended court on the day of hearing and the conclusion arrived at by
court that my case was deemed to have been closed, is factually incorrect.

10. I have been advised by advocates on record, which advice I verily believe to
be true, that sickness on my part as the reason for my absence was a genuine
and good cause for adjournment of the Hearing in the interest of justice.

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11. I have been advised by advocates on record, which advice I verily believe to
be true, that the Honourable Vice Chairperson erred in law and fact by
proceeding with hearing of the Respondent in my absence and thus denying
me my right to a fair trial in blatant violation of article 50 of the
Constitution.

12. My Application for Review may be rendered nugatory should the

Respondent execute the decree before this Application is heard and
determined.

13. I stand to suffer substantial loss if the Respondent proceeds to execute the
said Decree against me and the Review later succeeds.

14. I have advised by my advocates, which advice I verily believe to be sound,

that the grounds relied upon on this application disclose sufficient reasons
for Review of Hon. Chege Gakuhi’s Decision in Tribunal Case No. E740 of
2021.

15. The Respondent shall suffer no prejudice if this application is allowed as

prayed.

16. It is therefore, in the interest of justice that the prayers sought herein be
granted as prayed.

17. That what is deponed hereinabove is true to the best of my knowledge,

information and belief.

SWORN at Nairobi by )
JAMES MAMBOLEO ) …………………………………
This 30th day of November, 2022
)
BEFORE ME )
)
)
)
COMMISSIONER FOR OATHS)

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Drawn and filed by: -
Mituga & Company
Advocates
View Park Towers
3rd Floor
Utalii Lane
P. O. Box 35253 - 00100
Nairobi
Email: omituga@yahoo.com

To be Served Upon
L.N Muchiri & Co. Advocates
Santa Plaza
2nd Floor
Dagoretti Corner, Ngong Road
P.O Box 32412-00600
Nairobi.
Tel No: 0721-242-489
Email: Imuchirirah@yahoo.com

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