[2022] KEBPRT 742 (KLR)

Koki Timber & Allied Togi Investments (K) Ltd v Mathea & another (Tribunal Case E011 of 2021) [2022] KEBPRT 742 (KLR) (Civ) (25 July 2022) (Ruling)

Neutral citation: [2022] KEBPRT 742 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E011 of 2021

Gakuhi Chege, Vice Chair

July 25, 2022

Between

Koki Timber & Allied Togi Investments (K) Ltd

Applicant

and

Nancy Mathea Grayson/ Nancy Wanjiku Mathea

1st Respondent

Icon Auctioneers

2nd Respondent

Ruling

1. On August 4, 2021, this Tribunal delivered a ruling in respect of the tenant’s application dated April 14, 2021 and made the following orders:-“(a) The respondents are restrained from levying distress or in any other manner interfering with the tenant’s occupation of the demised premises pending reconciliation of the rent account by both parties and if not to be determined by this Tribunal.(b) Both parties shall engage, file and exchange their respective rent accounts within the next twenty one (21) days hereof.(c) A date for mention of this case shall be fixed in the next 21 days for purposes of recording the agreement reached and if not a ruling date thereon.(d) Costs of the application shall be in the cause”.

2. The matter was fixed for mention on August 25, 2021 on the same day and the tenant was ordered to clear rent for May, June, July and August 2021 before the said date. The payments were to be proved in cleared funds.

3. On August 25, 2021 when the matter was mentioned, the parties had not yet agreed on the rent due but it was confirmed that rent for May, June, July and August 2021 had been paid. A further mention date of September 24, 2021 was set.

4. On September 24, 2021, the tenant’s advocate requested for leave to file the tenant’s rent accounts by September 28, 2021 and the matter was set down for mention on October 22, 2021.

5. On October 22, 2021, the accounts had not been filed nor reconciled by the parties and the matter was adjourned to November 5, 2021 for mention.

6. On November 5, 2021, the landlord’s counsel was not present and the matter was put off to January 29, 2021 for mention. On that date, the tenant’s counsel did not attend and as parties had not agreed on the rent accounts, a further mention date of February 2, 2022 was set.

7. On February 2, 2022, the parties had not agreed on the accounts and counsel for the landlord indicated that there was an application by the tenant’s counsel to withdraw from acting. As the same was not on record, this Tribunal fixed the matter for mention on February 28, 2022 and the tenant was ordered to clear rent for December 2021 and January 2022. The Tribunal directed that the disputed rent be deposited with it.

8. The matter was not mentioned on February 28, 2022 and a new date was fixed at the registry for March 17, 2022. On that date, the tenant’s counsel sought for an order to stop sale of goods taken from the tenant’s premises. An order for stay of sale was granted and mention was set for April 13, 2022. The tenant was ordered to continue paying rent.

9. On March 29, 2022, the tenant moved this Tribunal seeking for temporary injunction against the landlord from levying distress and further sought for setting aside the orders of February 2, 2022. The tenant also sought for an order that the Tribunal assess the disputed rent owed to the landlord.

10. Interim orders of injunction were granted by Hon P May (Vice chair) on March 31, 2022 and the matter was fixed for inter-partes hearing on April 14, 2022. On the said date, directions were issued to the effect that the application be canvassed by way of written submissions and the matter was directed to be mentioned on April 29, 2022 to confirm compliance and fix a ruling date.

11. The matter was however not listed on April 29, 2022 and a new date of June 6, 2022 was fixed at the registry by the tenant. When the matter came up for mention on June 6, 2022, counsel for the tenant applied for 7 days to file submissions and the matter was fixed for ruling on July 25, 2022 with leave to submissions file as requested. By the said date, the landlord’s counsel had filed submissions.

12. By the time of writing this ruling, the tenant’s submissions were not yet on record.

13. I am required to determine the following issues:-a.Whether the tenant is entitled to the reliefs sought in the application dated March 29, 2022. b.Who is liable to pay costs of the application and the entire reference?.

14. In opposition to the application, the Respondents filed a preliminary objection to the effect that this Tribunal has no jurisdiction to grant an order of injunction under section 12 of Cap 301, Laws of Kenya. Secondly, the respondents contend that the application dated March 29, 2022 is an abuse of the honourable Tribunal’s process.

15. I have seen the decisions relied upon in the respondents’ submissions in the cases of Republic v Business Premises Rent Tribunal & anotherex-parteAlbert Kigera Karume & another (2013) eKLR and the case of Mercy Wanjiku Sitton v Irene Ogalis T/A Ogalis Holdings Limited (2015) eKLR.

16. I note that the said Court of Appeal decisions relied upon by the respondents predate the Constitutionof Kenya, 2010 which elevated Tribunals to the status of subordinate courts under article 169 (1) (d) thereof. This provision of the Constitution was not referred to in the case of Mercy Wanjiku Sitton v Irene Ogalis T/A Ogalis Holding Ltd (supra).

17. In the case of Republic v Business Premises Rent Tribunal ex-parte Albert Kigera Karume (2015) eKLR Justice GV Odunga at paragraph 41 after reviewing the provisions of article 169(1) (d) of the Constitutionof Kenya, 2010 and section 2 of the Civil Procedure Act had the following to state:-“The court under section 2 of the said Actis expressed to mean the High Court or a subordinate court acting in exercise of its Civil jurisdiction”. These provisions when read together clearly supports the view that under the current constitutional dispensation in the absence of express limitation of the jurisdiction of the Tribunal, the Business Rent Tribunal is clothed with the jurisdiction to grant temporary injunctions”.

18. The court in the said case cited the court of appeal decision in John Mugo Nganga v Margaret M Murangi(2014) eKLR where the Tribunal’s jurisdiction to issue injunction was upheld at paragraph 42 of the decision.

19. In the premises, I find and hold that the preliminary objection on that point is misconceived. However, I agree with the Respondents that the application is an abuse of court process as the orders sought had previously been granted and vacated when the applicant failed to comply by failing to pay rent as per the orders of May 19, 2021. The tenant by making the same application for injunction which had been granted by my ruling of August 4, 2021 has offended the doctrine of res judicata which is provided for under section 7 of the Civil Procedure Act.

20. In the case of Uhuru Highway Development Limited v Central Bank of Kenya & 2 others (1996) eKLR, the Court of Appeal held that the doctrine of res judicata applies to applications made in the interlocutory stage of a suit as much as it applies to final determinations (see pages 13-14 of the judgment).

21. I therefore hold that the application is not only an abuse of court process but also offends the doctrine of Res judicata. It is thus a candidate for striking out.

22. As regards whether the tenant owes any rent arrears and if so, the quantum thereof, both parties were granted an opportunity to file their statements of rent accounts or agree on the amount due to the landlord. Several mentions were conducted but no agreement could be reached. The landlord swore a replying affidavit on April 7, 2022 stating that the disputed rent arrears were in respect of payments allegedly made by the tenant as follows:-a.Kshs 415,000 in March 2020. b.Kshs 415,000 in March 2021c.Kshs 105,000 in November 2020. d.Kshs 105,000 in December 2020. Kshs 1,040,000/- in total.

23. The tenant filed her affidavit sworn on October 17, 2021 attaching copies of bank statements. I have examined the bank statements together with the payment vouchers marked ‘LM-4’ attached to the tenants further affidavits of May 21, 2021 and note that the only payments confirmed out of the amount in dispute are the following:-i.Kshs 514,000/- paid on March 12, 2020. ii.Kshs 100,000/- paid on December 22, 2020. iii.Kshs 150,000/- paid on March 2, 2021. Kshs 665,000/-

24. Upon deduction of the said payments from the amount in dispute, the sum due thereon is kshs 375,000/- which is payable to the landlord. I did not come across any evidence of payments made in November 2020 from the documents submitted by the tenant.

25. In regard to costs, the same are in the court’s discretion and in view of the fact that both parties have partially succeeded in their respective claims, I shall order that each party pays own costs of the reference.i.The tenant’s application dated March 29, 2022 is hereby dismissed.ii.The tenant is found to be indebted to the landlord in the sum of kshs 375,000/- out of kshs 1,040,000/- in dispute for the years 2020/2021 and the landlord is entitled to recover the same.iii.The injunction orders given on August 4, 2021 and March 31, 2022 are hereby discharged/vacated.iv.The landlord is entitled to use lawful means to recover the outstanding rent against the tenant.v.All the issues in the reference having been investigated by this Tribunal under section 12(4) of Cap 301, laws of Kenya are hereby marked as settled by this ruling.It is so ordered.

RULING SIGNED, DATED AND VIRTUALLY DELIVERED THIS 25TH DAY OF JULY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Kariuki G.E. for the LandlordChege for the Tenant/Applicant