[2017] KEHC 2292 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CIVIL CASE NO. 2 OF 2016

CALEB WANJOHI MWANGI T/A

ANICA WOOD AGENCIES ……………….…………………….. PLAINTIFF

versus

KENYA FARMERS ASSOCIATION

LIMITED (KFA) ………………………………….…..……..... 1ST DEFENDANT

BRANCH MANAGER NANYUKI BRANCH …………...….. 2ND DEFENDANT

ELIZABETH KANYUNGU …………………………………. 3RD DEFENDANT

RULING

1. CALEB WANJOHI MWANGI (Caleb) trading as Anica Wood Agencies filed this action by way of a plaint on 5th December 2013. He pleaded in that plaint that he was a tenant of the 1stDefendant, Kenya Farmers Association Limited (KFA). That he had ‘faithfully’ paid monthly rent to KFA of Kshs.3,000 per month. That in August 2013 KFA unlawfully refused to receive his rent. Being aggrieved by that refusal of receipt of rent, Caleb pleaded that he filed a matter against KFA the Business Premises Rent Tribunal (BPRT) vide Tribunal Case No. 38 of 2013. The said BPRT issued temporary orders of injunction on 8th August 2013. Temporarily the tribunal ceased to operate because there was no chairperson to hear the matters.

2. Caleb filed before the Chief Magistrate’s Court Milimani Nairobi Misc Application No. 763 of 2013. The said court issued a temporary injunction on 8th August 2013 which was ordered to subsist up to 19th August 2013 when the Tribunal chair person was expected to resume duties at the Tribunal. Since however by 20th August 2013 there was no chairperson presiding at the tribunal the Chief Magistrate’s Court at MilimanI issued the following orders:-

“That the landlord be and is hereby restrained from evicting the tenant (Caleb) or harassing or threatening the tenant and to grant the tenant peaceful occupation of the Business Premises being space on part of a Petrol Station next to KFA Building owned by the Landlord (KFA) in Nanyuki town pending hearing before the Business Premises Rent Tribunal once it resumes normal function with a presiding chairperson.”

3. Caleb in filing the present action has pleaded that KFA in breach of the order of the Chief Magistrate’s Court Milimani leased the premises he occupies to the 2nd defendant, namely Elizabeth Kanyungu (Elizabeth). In this action Caleb has sought the following orders:-

“(a) A mandatory injunction compelling the 1st Defendant

(KFA) to grant quiet uninterrupted, peaceful occupation and enjoyment of the suit premises located on commercial plot No. 264/18/205 situated outside the 1st Defendant’s Nanyuki Branch offices.

(b) A declaration that the purported lease between the 1st Defendant and the 2nd Defendant (Elizabeth) is unlawful, null and void ab initio.

(c) A permanent injunction restraining the 1st and 2nd Defendants, by themselves their agents, employees, proxies from evicting the plaintiff and the suit premises herein and from constructing or trespassing on or in any way, interfering with the plaintiff’s interest enjoyment and peaceful occupation of the suit premises located at commercial plot No. 264/18/205. ”

4. An order of interlocutory injunction was granted in terms of the above prayers and which order subsists todate. When the matter subsequently came before court and the parties seemed reluctant to proceed with the same an order was made by this court for the full hearing to proceed on 5th October 2017. On 5th October 2017 only Caleb’s learned counsel Mr. Abwuor attended court. He requested the court to transfer this matter to BPRT for hearing. The court reserved a Ruling on whether this case should be transferred. This Ruling therefore relates to that request.

5. It is clear that Caleb alleges that his was a controlled tenancy in terms of the Landlord and Tenant (Shops, Hotel and Catering Establishment) Act Cap 301. Matters relating to such controlled tenancies should only be entertained by the BPRT: See Section 11of Cap 301. Caleb by his affidavit in this matter confirmed that he had filed a reference before BPRT being Tribunal Case No. 38 of 2013 relating to the very dispute now in this action. That the said Tribunal matter could not be heard because there was no chair person in place. Now, it is within the public domain that the Tribunal has a chairperson. It follows that there is no legal basis to continue having this matter on record and at the same time have the tribunal matter on record. The two matters subsisting at the same time relating to the same dispute is an abuse of the court process and it cannot be allowed to continue. It follows that the order sought for the transfer of this matter to the Tribunal will not be granted because to allow it would be to perpetuate am abuse of the court process. This suit therefore shall be struck out with no costs because the defendants failed, despite being served to attend court on 5th October 2017.

6. Accordingly I make the following orders:-

(a)This case is hereby struck out, with no orders as to costs, because it is an abuse of the court process.

(b)The interim interlocutory orders issued herein are hereby vacated.

Orders accordingly.

DATED and DELIVERED at NANYUKI this 8th day of NOVEMBER 2017

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

For Plaintiff …………..…………….………………..………

For 1st Defendant: …..........................................

For 2nd Defendant: …..........................................

Language: …………………………………………………..……..

COURT

Ruling delivered in open court.

MARY KASANGO

JUDGE