https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10494

Kingoina v Kumenda (Civil Appeal E069 of 2024) [2026] KEHC 10494 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10494 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E069 of 2024 AM Okutoyi, J July 9, 2026 Between Grace Makori Kingoina Appellant and Jason Nyachae Kumenda Respondent (An appeal from a ruling delivered by Hon C W Keter RM in Kisii Chief Magistrate’s Court Civil Case No. E820 of 2023 on 22nd March 2024) Judgment Introduction 1.The suit herein was filed by the Appellant Grace Makori King’oina Alias Grace Marube against the Respondent Jason Nyachae Kumenda. The Claim was for a sum of Kshs.989,000/= being unpaid rent, incremental rent of Kshs 23,000/= per month thereto, interest; general damages; costs of the suit and such other further relief that the Honourable Court may deem fit and just to grant. 2.It was pleaded that, the Plaintiff, now the Appellant was at all material times the Landlord of the Premises erected on Kisii Municipality Block III/85 by dint of ‘Business Premises Rent and Tribunal Act Section 15’ and the Defendant now the Respondent was the tenant occupying the ground floor of the referenced property. That during the Tenancy agreement the Respondent reneged rent payment among other issues culminating to the institution of BPRT Case No. 82 of 2019, a case which was heard and determined vide a ruling dated 2nd March 2023 in favour of the Respondent. 3.The Appellant avers that for the period of 1st September 2019 to 31st March 2023, the Respondent, who was obligated to pay rent in the sum of Kshs.23,000/= per month subject to incremental adjustments, never paid any rent to the Appellant as per the lease/tenancy agreement. At the time of institution of the suit, the Respondent was a former tenant, wherein during the Tenancy he defaulted and breached tenancy terms which was terminated on 31st March 2023 vide BPRT Case No. 82 of 2019. As a result, the tenancy arrears remained outstanding culminating the suit at the trial court. 4.Upon service of summons dated 25th October 2023, the Respondent entered appearance on 31st October 2023 and filed his statement of defence dated 6th December 2023, denying that the Appellant is the Registered owner of the subject premises, that the issues in contention were conclusively resolved in Kisii CMELC NO. 135 of 2019, BPRT Case No. 82 of 2019 and further existence of another suit in Kisii Environment and Land Court. In totality the Respondent prayed that the suit is res judicata and it should be dismissed with costs. 5.Vide an application dated 2nd February 2024, the Respondent sought to have the Appellant’s suit struck out with costs for being res judicata to Kisii MCELC No. 135 of 2019. The same was opposed by the Respondent. Parties subsequently filed their respective submissions. 6.The Respondent highlighted the case of Kisii MELC No. 135 of 2019, in which the parties' roles were reversed, he was the Plaintiff and the Appellant herein Grace Makori was the Defendant. In that suit, the Respondent had alleged that he was unlawfully barricaded and the premises padlocked without lawful cause. In that suit, the Respondent sought and was granted; a declaration that the Appellant’s actions of barricading/padlocking constituted impunity and breach of law, and a permanent injunction restraining her from interfering with, evicting from, barricading, or otherwise dealing with the suit premises occupied by the Respondent. 7.It is the Respondent’s assertion that the judgment in Kisii MELC No. 135 of 2019 settled the question of the Appellant’s ownership/landlady status and her entitlement to draw rent from the Respondent, the issue was resolved and no appeal and a review preferred was not successful. 8.On the other hand, the Appellant maintained her position as landlady, relying on the Ruling issued in BPRT Case No. 82 of 2019 in her favour, and sought to recover the rent arrears, incremental rent, interest, and damages arising from the tenancy that ended 31/3/2023. 9.The Trial court in pronouncing itself applied the doctrine of res judicata under Section 7 of the Civil Procedure Act, citing Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 on the primacy of jurisdiction, and Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR on the finality purpose of res judicata. 10.The court in its ruling observed that although the orders in Kisii MELC No. 135 of 2019 were worded differently from those sought in the present suit, they substantially affected the court's competence to grant the present orders since the earlier judgment had restrained the Appellant from dealing with the suit premises, while the present suit sought to recover rent tied to the Respondent’s occupation of those same premises. Subsequently the suit was found to be res judicata to Kisii MELC No. 135 of 2019. The court held it lacked jurisdiction to entertain the suit, struck out the claim, and ordered the Plaintiff to bear the costs of both the application and the main suit. The Appellant’s Case 11.The Appellant herein being dissatisfied with the entirety of the Trial Court’s ruling and vide a Memorandum of Appeal dated 9th April 2024 sought the following prayers:a.That the appeal be allowed with costs to the Appellant in the Appeal and the Lower Court.b.That the ruling of the Honourable Magistrate W C Keter delivered on 22nd March 2024 and only any consequential orders thereof be reviewed, varied and set aside and/or be vacated.c.That the substance of civil suit Kisii Chief Magistrate Court Civil Case No. E820 of 2023 be and is hereby reinstated for hearing and determination on merit.d.Any relief deemed fit by this Honourble Court 12.The Appeal is premised on 6 grounds summarized as follows;a.The Ruling pronounced and or finding of the Learned Magistrate was utterly erroneous and incompatible with established Jurisprudence on the issue of Res judicata.b.The summary dismissal of the Appellant's suit in the lower court is contradictory to the right to fair trial and or processes underpinned in Articles 25(c) and 50(1) of the Constitution of Kenya, 2010.c.The learned Magistrate simplistically relied on grounds and submissions advanced by the Defendant/Applicant in the Lower Court and thus failed to appreciate that the same were devoid of objective legal basis leading to erroneous finding on facts and the law.d.The Learned Magistrate erred by failing to appreciate that the civil case E820/2023 emanated from contract to recover rent not paid to the Appellant by her former tenant who is the Respondent herein.e.The dismissal of the appellant's case summarily was irregular, inimical to the right to access Justice and an affront to the rule of law, unconstitutional, null and void.f.The ruling and finding of the Learned Magistrate lacks basis in law and fact and is thus unmaintainable. The Respondent’s Case 13.It is the Respondent’s submission that the Appellant concealed the existence of Kisii MELC Case No. 135 of 2019, when filing the suit before the trial court. On the issue of ownership, the Respondent submits that the suit premises was jointly registered to Johnson Nyakundi Kingoina and Rebecca Bosibori Kingoina since 1994. Following Rebecca's death, sole ownership vested in Johnson Nyakundi Kingoina by operation of law, who remains registered proprietor to date. 14.The Respondent argues this means the Appellant never held title or landlady status entitling her to rent. That the issue was adjudicated conclusively in Kisii MELC No. 135 of 2019, Wherein Hon. S.K. Onjoro vide a judgment dated 26th November 2021 held that the Appellant had no colour of right over the property and that the Respondent owed her no contractual obligation. That judgment was never appealed survived a review application, which was dismissed with costs 12th July 2023, holding the review was an improper attempt to appeal a co-equal court's decision. 15.It is further submitted that the decision was conclusive under Section 44 of the Evidence Act and statute-barred from re-litigation under Section 7 of the Civil Procedure Act. The Respondent further submits that the Appellant's reliance on the ruling issued in BPRT Case No. 82 of 2019 is a nonstarter as the same was dismissed. As such re-litigation of rent arrears via the present suit is barred under Order 3 Rule 4(3) of the Civil Procedure Rules 16.The Respondent states that in any event the suit is a nullity, since the Tribunal had no jurisdiction to effectively sit on appeal over the Magistrates' Court decision in MELC No. 135 of 2019, which had already conclusively determined the same subject matter. The Respondent characterizes the Appellant's conduct as an attempt to "re-invent" a resolved dispute under the guise of a fresh cause of action citing Kahoro & 2 others v Kanyamwi Trading Company Limited [2025] KECA 941 to buttress his submissions that a litigant cannot escape res judicata merely by hanging the framing while remaining the same party. The Respondent cited: John Florence Maritime Services Limited v Cabinet Secretary Transport & Infrastructure [2021] KESC 39, and Independent Electoral & Boundaries Commission v Maina Kiai [2017] KECA 477, both emphasizing finality as a pillar of the justice system. 17.Lastly the Respondent prays that this Court sitting on appeal to dismiss the appeal in its entirety with costs, upholding the trial Magistrate's finding that Kisii CMCC No. 820 of 2023 is res judicata to Kisii MELC No. 135 of 2019. Analysis & Determination 18.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 19.This Court, therefore, in seeking to arrive at a finding, has framed the following issue namely; Whether the Honourable Court has jurisdiction to entertain the appeal. 20.It is trite that a court has to be clothed with relevant jurisdiction before entertaining a matter. This was held in the case of Owners of The Motor Vessel “Lillian S v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), thus:“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” 21.The Court notes that this matter has indeed been relitigated in multiple courts. The ELC Court, the Chief Magistrate Court, The Business Premises Rent Tribunal and now before this court. The Contention has been one issue, the use, occupancy and the title in Kisii Municipality Block III/85. 22.Now in this court and through an appeal, the Appellant has called upon this court to find that the trial court erred in finding itself lacking jurisdiction to determine the suit before it. The crux of the matter is that the parties had litigated the same issue in Kisii MELC No. 135 of 2019 and BPRT Case No. 82 of 2019 which were determined, concluded and/or dismissed. 23.In addition, jurisdiction flows from the Constitution or Statute. The Jurisdiction of this court is conferred under Article 165 (5) of the Constitution of Kenya 2010 provides thatThe High Court shall not have jurisdiction in respect of matters—a.reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; orb.falling within the jurisdiction of the courts contemplated in Article 162(2) 24.The predominant issue herein being the use and occupancy of land, the trial court was well seized with the matter. The Jurisdiction of the Trial Court is provided under Section 9 (a), (v) of the Magistrates Court Act Cap 10 wherein it provides that in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 8D) and subject to the pecuniary limits under section 7(1) Magistrates Court Act Cap 10 to hear and determine claims relating to environment and land generally. 25.Further section 26 (4 & 5) of the Environment and Land Court Act provides for the Chief Magistrate Court Jurisdiction as follows;(4)Subject to Article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle —a.disputes relating to offences defined in any Act of Parliament dealing with environment and land; andb.matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act.(5)(5) Appeals on matters from the designated magistrate's courts shall lie with the Environment and Land Court 26.From the above proviso as read together with Section 13 (4) of the Environment and Land Court Act and Article 162 (b) of the Constitution the Environment and Land Court the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court and not the High Court. 27.This position was affirmed by The Court of Appeal in the Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR wherein the Appellate court opined as follows;“By parity of reasoning, although under Article 162 (2) of the Constitution Parliament is mandated to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and environment and the use and occupation of, and title, to land, that in itself does not confer an exclusive jurisdiction to those specialized courts to hear and determine the specified types of cases. However, as already stated, Article 165 (5) is clear that the High Court has no jurisdiction in respect of matters falling within the jurisdiction of the specialized courts. Whereas Parliament is empowered to enact legislation to confer jurisdiction to the Magistrate’s courts to hear and determine disputes stipulated under Article 162 (2) of the Constitution, it cannot establish a Superior Court or confer upon a Superior Court jurisdiction to hear employment and labour relations cases and environment and land cases.” 28.Further Sections 14 and 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act which parties herein are ostensibly referring to it as ‘Business Premises Tribunal Act’ provides for mechanisms of enforcing the tribunal’s orders and appealing from the same to the Environment and Land Court. 29.The appellate jurisdiction of the High Court cannot conceivably be exercised simultaneously with that of the Environment and Land Court. The Supreme Court in Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited and 2 Others, 2012 e-KLR; held that Courts can only exercise jurisdiction in accordance with the Constitution and the Statute. 30.Based on this analysis therefore, this court finds that the appeal is without merit and that the issues are situated in the Environmental and Land Court. 31.It is a well-established principle that costs follow the event and issued at the discretion of the Court. The Appeal being unmerited, the costs shall be awarded to the Respondent.Dispositiona.Accordingly, this court dismisses the Appeal in its entirety with costs to the Respondent.b.The Judgment of the subordinate court delivered on the 22nd March 2024 is upheld.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JULY 2026.A. M. OKUTOYIJUDGEIn the Presence of:Ms. Kwamboka for the AppellantMs. Opondo for the RespondentRuth Mokeira-Court Assistant