[2019] KEELC 3151 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CIVIL CASE NO. 1041 OF 2012

KENYA METHODIST UNIVERSITY.........................PLAINTIFF/RESPONDENT

=VERSUS=

NEW CHOTA RAHA LIMITED...................................DEFENDANT/APPLICANT

RULING

1. By a notice of motion dated 23rd July 2018, the plaintiff/applicant seeks orders:-

(1) Spent.

(2) Spent.

(3) Spent.

(4) Pending the hearing and determination of this application, the honourable court be pleased to order the plaintiff/respondent through its directors, agents, employees, assigns or through whomsoever or howsoever to return the defendant/applicant goods and tools of trade illegally carted away on 20th July 2018 to the premises at the Ground Floor and Mezzanine Floor of KEMU Towers on LR No. 209/0566.

(5) Pending the hearing and determination of this suit, the honourable court be pleased to issue an order directing the plaintiff through its directors, agents, employees, assigns or through whomsoever to open the premises at the Ground Floor and Mezzanine Floor at KEMU Towers on LR No. 209/0566.

(6) Pending the hearing and determination of this suit, the honourable court be pleased to order the plaintiff/respondent through its directors, agents, employees, assigns or through whomsoever or howsoever to return the defendant/applicant goods and tools of trade illegally carted away on 20th July 2018 to the premises at the Ground Floor and Mezzanine Floor of Kemu Towers on LR No. 209/0566.

(7) That costs of this application be provided for.

2. The grounds are on the face of the application and are set out in paragraphs 1 to 20. The application is also supported by the affidavit of Johnson Njoroge the director of the defendant/applicant sworn on the 23rd July 2018.

3. In response to the said notice of motion the plaintiff/respondent filed a replying affidavit sworn by Caroline Ndumia, Legal officer on the 6th August 2018 and the grounds of opposition dated 30th July 2018. The plaintiff/respondent also filed a notice of preliminary objection dated 30th July 2018.

4. On the 5th October 2018, the court directed that the preliminary objection be dispensed of first in priority to the notice of motion. The court also directed that the same be canvassed by way of written submissions.

5. The notice of preliminary objection is dated 30th July 2018. The same is premised on the following grounds:-

(1) It is incurably defective in that it is in the nature of an interlocutory application filed in a non-existent appeal against the ruling delivered by the Business Premises Rent Tribunal on 6th July, 2018 against which no appeal has been lodged.

(2) The defendant/applicant has no right of audience, having not complied with the order made on 6th July, 2018, by the Business Premises Rent Tribunal that it pays costs in the sum of Kshs.100,000 within 14 days and the plaintiff/respondent having exercised its right to recover its costs by way of levying distress.

(3) The said application is barred by the res judicata doctrine; an identical application dated 16th July, 2018 was dismissed by the Business Premises Rent Tribunal on 23rd July 2018.

(4) The plaintiff/respondent has, as common law and under the Distress for Rent Act, a right to levy distress and that is the right it has exercised.

The plaintiff’s/respondent’s submissions

6. The notice of motion dated 23rd July 2018 is in the nature of an appeal against the ruling of the Business Premises Rent Tribunal of 6th July 2018. The said ruling ought to be appealed against as provided for Section 15 of the Landlord and Tenant (Shops Hotels and Catering Establishments) Act, Cap 301. It arises out of separate cause of action from the one which brought about the current suit.

7. The defendant ought to lodge an appeal against the ruling of the Business Premises Rent Tribunal as provided for under Section 15 of the Act. The notice of motion dated 23rd July 2018 is thus misconceived and is improperly before this court. The defendant/applicant is by law is required to file an appeal.

8. The defendant/applicant has admitted in the supporting affidavit that it has not paid to the plaintiff Kshs.100,000 ordered to be paid by the Business Premises Rent Tribunal. It cannot claim to be wronged. When the plaintiff exercised its right to levy distress for payment of that amount. It has put forward the case of Nabro Properties Ltd vs Sky Structures Ltd & 2 Others [2002] 2KLR 299.

9. A party who disobeys court orders as the applicant has done, loses its right of audience. They have put forward the case of Mawani vs Mawani [1977] KLR 159.

The plaintiff/respondent prays that the notice of motion dated 23rd July 2018 be dismissed with costs.

The defendant/applicant’s submissions

10. The defendant is a party to the present suit and is entitled to make such applications as are permissible under order 51 of the Civil Procedure Rules. The defendant’s application is intended to maintain the status quo obtained as at 23rd July 2018. The defendant/applicant has not expressed any interest of appealing against the decision of the Business Premises Rent Tribunal. The notice of motion dated 23rd July 2018 is brought under Order 40 rules 1, 4, 5, 8 and 10 of the Civil Procedure Rules among others. The defendant/applicant is not seeking to stay a decision of the Business Premises Rent Tribunal but merely seeking interim orders in a suit that is before this court, and to which it is a party. The application is intended to prevent the plaintiff from employing illegal tactics of evicting it from the premises in the pendency of the main suit. The same is properly before this court.

11. The definition of a preliminary objection was set out in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696. Grounds 2, 3 and 4 of the Notice of Preliminary Objection herein relate to the matters of fact not law. See also, Oraro vs Mbajja [2005] eKLR, Moses Likoye Wanjala vs Bernard Wekesa Sambu [2013] eKLR.

12. Whether a matter is res judicata or not is a matter of fact, calling for evidence. A court cannot in limine dismiss an applicant without interrogating the assertion that his/her matter has been dealt with previously by a court of competent jurisdiction. The respondent in pleading res judicata had the obligation of directing the court properly to the contents of the application of 16th July 2018 and the manner it was disposed of by the honourable tribunal. It is trite law that he who alleges must prove.

13. The applicant has a right to be heard. They have put forward the cases of Lotta vs Tanaki [2003] 2EA 556; Hariris Kamiti Kihara vs John Gachoka Kihara & 2 Others [2017] eKLR. They pray that the preliminary objection be dismissed with costs.

14. I have considered the preliminary objection, the grounds of opposition, the written submissions of counsel and the authorities cited. The issues for determination are:-

(i) Whether the defendant’s application dated 23rd July 2018 is properly before the court.

(ii) Whether the preliminary objection is merited.

15. It is the defendant’s/applicant’s case that it is a party in the present suit and as such it is entitled to make such application that are permissible under order 51 of the Civil Procedure Rules. Indeed the defendant is a party to this suit. By a plaint dated 11th December 2012, the plaintiff seeks to have the defendant give vacant possession of the suit premises. The defendant/applicant was brought to this court by the plaintiff. The defendant/applicant is entitled to make such applications that are necessary. It has a right to be heard. I find that the notice of motion dated 23rd July 2018 is properly before this court.

16. As to whether the preliminary objection is merited, I rely on the case of Mukisa Biscuits Manufacutring Co. Ltd vs West End Distributors [1969] EA 696. Where the court stated thus as per Sir Charles Newbold, P:

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is exercised of judicial discretion.”

17. I will address the first and fourth grounds of preliminary objection together. I have gone through annexures to the affidavit of Caroline Ndumia, Legal Officer of the plaintiff/respondent herein. The brief history is that upon being served with a notice to terminate tenancy the defendant/applicant herein filed a reference to the Business Premises Rent Tribunal “herein referred to as ‘Tribunal” vide case No. 298 of 2012 and got some orders. The plaintiff/respondent herein, then filed a notice of preliminary objection before the tribunal on the ground that the tribunal lacks jurisdiction to entertain any proceedings between the parties since the tenancy had been terminated by effluxion of time.

18. It is from this preliminary objection that the Chairman of the tribunal gave his ruling on 6th July 2018. The orders granted by Mbichi Mboroki Chairman Business Premises Rent Tribunal on 6th July 2018 were:-

“1. The landlord’s notice of preliminary objection dated 6th October 2017 is upheld.

2. The tenant’s reference dated 11th September 2017 and the notice of motion of the same date are struck out as incompetent with costs to the landlord/respondent on a higher scale under Section 13 of Cap 301.

3. The interim orders issued on 11th September 2017 are discharged forthwith.

4. The tenant/applicant shall pay the landlord/respondent costs assessed at Kshs.100,000/-

5. Costs shall be paid within 14 days from the date of the ruling in default the landlord shall recover the same by way of distress”.

In my humble view the issues raised in the notice of motion dated 23rd July 2018 have not been a subject for determination by the court of competent jurisdiction. The defendant/applicant was locked out because the tribunal did not have jurisdiction.

19. In the case of Lotta vs Tanaki [2003] EA 556, it was held thus:-

“The doctrine of res judicata is provided for in order 9 of the Civil Procedure Code of 1966 and its object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgment between the same parties of their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. The scheme of section 9 therefore contemplates five conditions which, when co-existent, will bar a subsequent suit. The conditions are:- (i) the matter directly and substantially in issue in the subject suit must have been directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties of privies claiming under them; (iii) the parties must have litigated under the same title in the former suit; (iv) the court which decided the former suit must have been competent to try the subsequent suit; and (v) the matter in issue must have been heard and finally decided in the former suit:”

As stated earlier, the tribunal having found that it did not have jurisdiction to hear the matter cannot be said that the cause of the defendant/applicant has been heard and determined by a court of competent jurisdiction.

20. I am also of the view that the plaintiff’s right to levy distress and the procedure followed is a question of fact.

21. The upshot of the matter is that the preliminary objection herein is not merited. The same is dismissed. The costs do abide the outcome of the main suit.

It is so ordered.

Dated, signed and delivered in Nairobi on this 8TH day of MAY 2019.

.........................

L. KOMINGOI

JUDGE

In the presence of:-

Ms Nduta Kamau Advocate for the Plaintiff

Mr. Omondi Advocate for the Defendant

Kajuju - Court Assistant