[2025] KEBPRT 262 (KLR)

Anzeze v Royal Haven International School (Tribunal Case E1209 of 2024) [2025] KEBPRT 262 (KLR) (16 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 262 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1209 of 2024

A Muma, Member

April 16, 2025

Between

Esther Anzeze

Landlord

and

Royal Haven International School

Tenant

Ruling

A. Parties and their Representatives 1. The Applicant, Esther Anzeze (the “Landlord”) has let out business premises at the property known as Land Reference Number 3734/70 located at Convent Drive, Lavington, the subject matter if this suit (hereinafter referred to as “the premises”).

2. The Respondent, Lilian Wangui T/A Royal Haven International School (the “Tenant”) is the tenant of the premises which is the subject matter of the present suit.

3. The Firm of M/S Cliff Oduk Advocates appears for the Landlord/Applicant.

4. The firm of M/S Muturi S.K & Co Advocates is on record for the Tenant/Respondent.

B. Background of the Case 5. The Tenant approached this Tribunal vide a Notice of Motion under a Certificate of Urgency dated 9th December 2024 seeking inter alia that this Tribunal do issue orders restraining the landlord from terminating the tenancy, levying distress for rent, evicting or in any other manner whatsoever interfering with the tenant’s quiet possession on property Land Reference Number 3734/70 located at Convent Drive, Lavington.

6. In opposition, the Landlord filed a Notice of Preliminary Objection dated 6th January 2025 on the grounds that the Application dated 9th December 2024 is res judicata and that this Tribunal lacks jurisdiction to hear and determine the Application dated 9th December 2024.

7. The Landlord then made application through a Notice of Motion dated 27th January 2025 seeking inter alia that the court to issue orders directing the Tenant deposit the accrued rent arrears amounting to Kshs. 1,690,000. 00 together with the destruction caused of Kshs.2,000,000. 00 to the Landlord’s Advocates’ Account.

8. The Tenant filed a Replying Affidavit opposing the Application.

C. Landlord’s Case 9. The Landlord submits that the Tenant filed Tribunal Case BPRT E1365/2024 -Lilian Wangui T/a Royal Haven International School v Esther Anzeze knowing clearly that it involved same parties, same cause of action as the present matter.

10. The Landlord avers that the Tenant destroyed premises and illegally vacated the premises to avoid being asked to clear the rent arrears that had accumulated since January, 2024 up to date.

11. It was the Landlord’s submission and prayer that the Tenant pays accrued rent arrears amounting to Kshs. 1,690,000. 00 together with the destruction caused of Kshs. 2,000,000. 00 totaling to Kshs. 3,690,000. 00.

D. Tenant’s Case 12. The Tenant submitted that the Landlord has not provided receipts to prove her claim that the Tenant owes her Kshs. 1,690,000. 00. The Tenant submits that she has produced receipts evidencing that she had complied with paying her monthly rent.

13. The Tenant further submits that the Landlord has neither provided evidence of alleged cheques which bounced nor provides statement of accounts that the tenant is in arrears.

14. The Tenant avers that the Landlord has not provided any photographic evidence detailing how the premises looked prior to the Tenant taking up possession to allow the Court make a comparison and properly assess the damage allegedly caused.

15. It is the Tenant’s submission that the Landlord has not provided receipts evidencing the costs incurred while making the alleged damaged improvements.

16. The Tenant has prayed that this court dismisses the case.

E. Issues for Determination 17. Having carefully perused the Application, Notice of Preliminary Objection and Responses presented by parties, it is therefore my respectful finding that the issues for determination before this honorable tribunal are:i.Whether BPRT E1365/2024 -Lilian Wangui T/a Royal Haven International School v Esther Anzeze is res judicata to the present suit.ii.Whether the Landlord is entitled to orders for damages.

F. Analysis and Determination a. Whether BPRT E1365/2024 -Lilian Wangui T/a Royal Haven International School v Esther Anzeze is res judicata to the present suit. 18. The doctrine of res judicata is premised on Section 7 of the Civil Procedure Act as stated below:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

19. The Court of Appeal in Independent and Boundaries Commission v Maina Kioi & others laid down the test for res judicata as follows;“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.

20. In the instant case, there are two suits, that is, BPRT Case No. E1209 of 2023 and the present suit BPRT E1365/2024. In both suits the same parties are litigating under the same titles of Landlord and Tenant.

21. In BPRT Case No. E1365/2024, the Tenant is seeking inter alia that the court issue order restraining the Landlord from illegally evicting her from the suit premises. The Tribunal in BPRT Case No. 1209/2023 had already determined the matter and gave orders inter alia that the Tenant handover the vacant possession of the suit premises on or before 20th August, 2024. The matter of vacant possession of the property has therefore been already dispensed with the Tribunal which is vested with the jurisdiction to do so.

22. The Tribunal thus finds that BPRT Case No. E1365/2024 is res judicata to BPRT Case No. 1209/2023.

23. Having found that the Tenants suit is resjudicata this leave us with the landlord’s application dated 27th of January 2025 which is a claim for damages amounting to Kshs 3,690,000. Being rent arrears which is the reason the landlords eviction application was upheld as the Tenants failed to meet the rental obligations completely the same was proofed earlier and remains due and owing and payable to the Landlord.

24. On the claim for Ksh. 2,000,000 for damages the same has not been specifically proven, no pictures, no valuation, no receipts or profoma invoices showing the cost implication of the damages caused while moving out and the same is merely speculative and cannot be awarded.

G. Orders 25. In the upshot, it is my considered view that the Notice of Preliminary Objection dated 6th January has merit and is therefore allowed the Tenants reference and Application dated 9th December 2024 are dismissed with costs to the Landlord assessed at KSH. 20,000/-

26. The application dated 27th January 2025 is awarded partially to with the rent arrears amounting to Kshs 1,690,000. 00 is due and payable to the landlord by the Tenant. Costs to the Landlord assessed at Ksh. 20,000/-.

27. Payment of any Further court fees is waived.

HON A. MUMA - MEMBERBUSINESS PREMISES TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 16TH DAY OF APRIL 2025 IN THE PRESENCE OF WANJIRU HOLDING BRIEF FOR ODUK FOR THE LANDLORD AND NA FOR THE TENANT