[2024] KEBPRT 1565 (KLR)
The Tribunal found that it lacked jurisdiction to grant the orders sought by the Applicants because the parties had voluntarily entered into new tenancy agreements with the 1st Respondent, thereby extinguishing their previous landlord-tenant relationships and any attendant orders or directions. The Tribunal held...
Source-derived case information.
- Citation
- [2024] KEBPRT 1565 (KLR)
- Parties
- Applicant: John Kiatie & 13 others; Respondent: Mary Wahu; Respondent: Matumbo Company Limited
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E649 of 2023
- Procedural Posture
- Tribunal Application / Ruling on Application to Reverse Previous Orders and for Rent Deposit Directions
- Outcome
- application dismissed with costs to 1st respondent
- Judges
- N Wahome, Joyce Murigi
- Legal Topics
- Business Premises Tenancy, Jurisdiction of Tribunal, Res Judicata, Functus Officio, Contractual Obligations, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kiatie & 13 others
Applicant
Mary Wahu
Respondent
Matumbo Company Limited
Respondent
Procedural Posture
Tribunal Application / Ruling on Application to Reverse Previous Orders and for Rent Deposit Directions
Legal Issues
- 1 Whether the Tribunal has jurisdiction to reverse its previous orders in light of new tenancy agreements.
- 2 Whether the issues raised are res judicata or the Tribunal is functus officio.
- 3 Whether the Applicants are entitled to continue depositing rent with the Tribunal instead of paying the 1st Respondent.
Ratio Decidendi
The Tribunal found that it lacked jurisdiction to grant the orders sought by the Applicants because the parties had voluntarily entered into new tenancy agreements with the 1st Respondent, thereby extinguishing their previous landlord-tenant relationships and any attendant orders or directions. The Tribunal held that there was no evidence of duress or coercion in the execution of the new agreements, and that any issues arising from these new contracts were not before the Tribunal in the current proceedings. The Tribunal further determined that the matters raised were either res judicata or the Tribunal was functus officio, having already rendered its decision on the previous relationship....
Court Disposition
application dismissed with costs to 1st respondent
Orders
- The Application dated 19th August 2024 is dismissed.
- The Applicants shall pay costs to the 1st Respondent assessed at Kshs.50,000 to be shared equally among themselves.
Full Case Text
Judgment text and source record
32 paragraphs
Kiatie & 13 others v Wahu & another (Tribunal Case E649 of 2023) [2024] KEBPRT 1565 (KLR) (5 November 2024) (Ruling)
Neutral citation: [2024] KEBPRT 1565 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E649 of 2023
N Wahome, Chair & Joyce Murigi, Member
November 5, 2024
Between
John Kiatie & 13 others
Applicant
and
Mary Wahu
1st Respondent
Matumbo Company Limited
2nd Respondent
Ruling
1. This Ruling is on the Applicants/Tenants application dated 19th August 2024. The same seek for orders primarily to have the orders of this court made on the 7th August 2022 reversed. They want to continue depositing rent on the demised premises at this Tribunal instead of paying the same to the 1st Respondent pending hearing and determination of Nairobi COACA Application E414/2024.
2. The Applicants also fault the distress for rent being effected by M/S SANNEX enterprises Auctioneers dated 14th August 2024. The Applicants also grief about the appointment of M/S Ndoto Investments Ltd by the 1st Respondent for purposes of managing the demised premises on her behalf.
3. To the Applicants, payment of rents to the 1st Respondent would introduce serious challenge to them in the event that the 2nd Respondent succeeded in Nairobi COACAPPL E414/2024.
4. On her part, the 1st Landlady/Respondent in opposition to the said Application filed the Replying Affidavit sworn on the 27th August 2024 and grounds of opposition of even date. To her, the issues before the court are Res-judicata and this court is also functus officio and is without jurisdiction.
5. To the 1st Respondent, the matters in this suit are spent and she has entered into fresh contractual relationships with all the Applicants herein.
6. The Applicants filed the submissions dated 15/10/2024 and a list of authorities of the even date. On her part the 1st Respondent opted to rely on the replying affidavit and grounds of opposition aforesaid.
7. We have perused the pleadings on record and are of the view that this matter will either rise or fall on us answering the question whether this court has the jurisdiction to superintend over the matters now before it.
8. The simple answer to that question is that by the new tenancy agreements entered into between the Applicants and the 1st respondent, their past relationships and attendant orders or directions thereof were obliterated and/or extinguished.
9. The parties voluntarily decided to get into fresh contractual obligations which are not the subject matter before this court. There is no assertion by the Applicants that they executed the respective tenancy agreement under duress, coercion or at all. In as far the Tenants executed the same, they were conscious of the subsistence of this matter before this court.
10. We really cannot understand the motivation by the Applicants to file this Application. They already committed to pay rent to the 1st Respondent/Landlords or by her directions and they cannot be seen to grief over their own commitments in a binding contractual disposition.
11. Indeed there is no issue arising before us on the tenancy Agreements dated 27th August 2024. In any event, such arising issues if at all would call for adjudication in another suit and not the present proceedings.
12. We also observe that the applicants have neither challenged the orders of 7th August 2024 by way of appeal and have also not sought to stay the same through Nairobi COACA E414/2024. Of most concern to us is that the 2nd Respondent who would be the main beneficiary of the grant of the orders herein is moot. To us this is either by design or he has the Applicants to vouch for its interest which leaks of legal absurdity in view of their tenancy agreements with the 1st Respondent dated 27th August 2024.
13. We are therefore of the view that there is nothing in the Application dated 19th August 2024 that is rife for determination by us as envisioned in the landlord and Tenant (Shops, Hotels and Catering Establishments Act (Cap.301). We therefore proceed to dismiss the application in its entirety.
14. On costs, it is our view that the 1st Respondent is the successful party in these proceedings. She also responded to the Application dated 19th August 2024 and filed a Replying Affidavit and grounds of opposition both dated 27th August 2024. We therefore in compliance with Section 27 of the Civil Procedure Act and the proviso thereof award for the costs of this Application.
15. In conclusion, the orders that commend to us are the following:i.That the Application dated 19th August, 2024 is dismissed.ii.That the Applicants shall pay costs to the 1st landlady/Respondent assessed at Kshs.50,000/- to be shared equally among themselves.Those are the orders of the court.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF NOVEMBER 2024. HON. NDEGWA WAHOME MBS - PANEL CHAIRPERSONHON. JOYCE MURIGI - MEMBERBUSINESS PREMISES RENT TRIBUNAL BPRTRuling delivered in the presence of Mr. Njugi for the 1st Respondent Landlady and Mr. Otieno for the Tenant/Applicant.