[2021] KEBPRT 423 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

TRIBUNAL CASE NO 60 OF 2020 (NAKURU)

LEO INVESTMENT LIMITED.............................TENANT/RESPONDENT

-VERSUS-

SAMSON OLOOLMAITAN...........................LANDLORD/1ST APPLICANT

NTOORIAN KORIATA..................................LANDLORD/2ND APPLICANT

STANLEY KOINET KORIATA.....................LANDLORD/3RD APPLICANT

SERA NJOKI MUNGE T/A

SANJOMU AUCTIONEERS.....................AUCTIONEER/4TH APPLICANT

RULING

Parties and Their Representative

1. The Tenant entered into a lease agreement on L.R No. CIS- MARA/LEMEK/173 (herein after referred as the suit premises’)

2. Nyongesa Nafula & Company Advocates represent the Tenant in this reference. nyongesa@nneadvocates.co.ke

3. The landlords and the registered proprietors of the suit premise that is the subject matter of the present suit.

4. J. Harrison Kinyanjui & Company Advocates represent the Landlords. greatharrison@yahoo.com 0777733659

The Dispute Background.

5. Suit No. ELC No. 7 of 2020 was filed in Narok by the Tenant.

6. The Landlord herein filed a Preliminary Objection claiming that the dispute thereof involved a tenant and a landlord, thus, a reference should have been made to this Tribunal instead.

7. Justice Mohammed Kullow in his ruling dated 13th March, 2020 found and held that the matter should have been filed in this Tribunal since it involved a landlord and a tenant.

8. The Tenant on the 24th of March 2020 moved the tribunal by way of a certificate of urgency and obtained orders dated 26th March 2020 which orders restrained the landlords from interfering with their quite possession in any way and or auctioning the tenant’s movables pending inter-partes hearing of the application. Accompanying the application was also a reference dated 24th March 2020 Form C Disputing Notice and rent arrears. The said Reference has never been set down for hearing.

9. In contention is therefore the orders of 26th March 2020 which were extended on 7th May 2020 to 4th June 2020. When this matter came up for hearing on 4th June 2020 before Chairman Hon. Mbich Mboroki (as he then was) in the presence of the tenants Advocates and in the absence of the landlords and or their advocates. The Tenant was granted prayers d, e and f of his application pending hearing of the reference, costs were assessed at 50,000/- as against the landlords jointly.

10. On 30th March 2021, the Landlords moved this honorable tribunal by way of a Notice of Motion dated 30th March 2021 seeking inter alia orders that:

a) This Motion be certified as urgent, and service thereof upon the Tenant be dispensed with in the first instance

b) The Order of Injunction herein issued on 26th March and confirmed on 4th June 2020 in favor of the Claimant be vacated, set aside entirety, and discharged, having become void by effluxion of time.

ALTERNATIVELY

c) The Order of Injunction herein issued on 26th Marchand confirmed on 4th June 2020 in favor of the Claimant be vacated, set aside entirety, and discharged, having become void by effluxion of time.

d) The Claimant’s complaint herein be struck out for being an abuse of the court process, and/or for want of jurisdiction for the Tribunal to entertain a complaint outside the provision of the Tribunal’s enabling statute.

e) Costs to be the Applicants in any event.

This application is the subject matter of this ruling and parties have filed responses and submissions to it.

The Tenants’ Case

11. The Tenant contends that they are a protected tenant under the provisions of the Landlord and Tenant (Shop, Game Lodges and Catering Establishments) Act having entered into a verbal tenancy agreement with the Landlords, to operate their Game Lodge premises erected upon the suit premise.

a) That the Landlords on or about 31st January 2020 Without any prior Notice as required by the law, valid court order or right invaded the suit premises in the company of a multitude of armed Maasai Morans and evicted therefrom the tenants;

b) That the landlords on 6th February 2020 through their agent Serah Njoki t/a Sanjomu Auctioneers proclaimed and attached all the Tenant’s moveable goods within the suit premise claiming that the Tenants together with an entity named Furahia Africa Limited was in Rent arrears of Ksh. 14,192,706. 00

c) That the Landlords and the 4th Respondents action are illegal not having been sanctioned by any Court or in execution of any Decree issued by Court or Tribunal of competent jurisdiction.

12. The application is Supported by an Affidavit of one Rahim Chatur, who is duly authorized to swear the Affidavit. The deponent gives the genesis of the suit and explains the relationship between the parties, The Respondents, the applicant and Furahia Africa Limited in relation to the subject matter of the suit and the suit premises.

13. He further deponed that Landlords issued a handwritten notice demanding that the Tenant pays them a back dated rent increment of sum total Kshs. 2,000,000 and affirmed that the Landlords hired Masai Moran who invaded the Applicant Game Lodge.

14. This Tenant’s application was heard and determined as stated herein above in paragraph 8 and 9.

The Landlords Case

15. The Landlord in their Notice of Motion dated 30th March 2021 stated that, the Injunction Orders granted to the tenants on 26th March 2020 have elapsed by effluxion of time one year after. They support their averment by provision of Order 40 Rule (4)(6) of the Civil Procedure Rules.

16. Further, they deponed that they did not have any agreement with the Tenant. That they had a tenancy agreement with Furahia Africa Limited (Leasee), which the evidence is attached as a copy of search of title. They contend that the Applicant chose to pay the arrears on behalf of the said Leasee.

17. Further they challenge the jurisdiction of this Tribunal to grant orders of injunction.

Jurisdiction

18. The Jurisdiction of this Tribunal is in dispute.

The Landlords Submission.

19. The Landlord/Applicant filed written submissions dated 8th Day of March 2021. They submitted that, the Tenant has not taken any step to comply with the statutory demands of such an extension requirement to extend the life of the injunction Order that was issued on 26th March 2020 therefore ceases to be operational.

20. They further submit relying on Rule 4(3) of Order 40of theCivil Procedure Rules which creates an automatic lapse “safety valve”, which by default renders injunctive orders not served within 3 days statutorily inoperative.

They submit that no extension was sought or otherwise granted in favour of the Tenant in light of the extension of the Injunctive orders.

21. They placed reliance in the emphatic rendition by the Court in the case of Director of Prosecution v Justus Mwendwa Kathenge & 2 others in which the court stated;

“…where a suit in respect of which an interlocutory injunction has been granted is not determined within 12 months from the date of the grant, the injunction is to lapse unless for some sufficient reason.”

22. Further, in anchoring their disposition, they submitted citing the case of S.N T/A Baby Steps Kindergarten Vs. Hasham Lalji Properties Ltd & Another [2008] where the Court (Nambuye, J) stated:

“…jurisdiction cannot be inferred in the Business Premises and Rent Tribunal Act for the Tribunal to issue an injunction where it had been expressly denied such power by the parliament.”

That as a result of which this Honourable Tribunal is divested of its jurisdiction.

The Tenants’ Submissions

23. The tenant filed written submission dated 23rd Day of April, 2021. They submitted that, it was the Landlords, who approached the Court that the said Court had no jurisdiction; that the jurisdiction resides in the tribunal and vide the ruling mentioned at paragraph 18 by the Environment and Labour Court at Narokin the said suit, their averments were well affirmed. It was their submission that, the Landlords having raised another Objection disguised as Notice of Motion to suggest that this Tribunal lacks Jurisdiction results to abuse of legal process.

24. It is their submission that, the Court having determined the question of Jurisdiction in the suit, Leo Investment Limited t/a Mara Concord Game Lodge vs Samson Oloolmaitai,then this prayer results to res jus judicata

25. They further submit that, the application by the Landlord /Applicant to the effect that the tribunal lacks jurisdiction to hear the reference and all proceedings therein is devoid of any legal effect, mischievous and bereft of the requisite legal broth.

26. They also submit that, as at the time they were expected to serve the Landlord/Applicants, The Civil Procedure Rules had not been amended to include the service via mobile telephone and that it was cumbersome to seek and get approval of the process server to go serve the Applicant at Narok.

27. Further to their submission, the Tenants stated that; the Landlords act of increasing the rent exponentially amounts to an unconscionable conduct. That the purposed eviction is an abuse and defeats the Act and exposes the Tenants to irreparable damage and extreme prejudice and upon eviction the tenant stands to suffer irreparable damages for the reasons that it will lose its potential revenue.

Analysis of Law and Determination.

28. With care and respectful considerations, I have analyzed the Notice of Motion dated 30th March 2021, all submissions and relevant authorities cited by the parties in anchoring and advancing their case. The Jurisdiction of this Honorable Tribunal has been contested therefore before proceeding to the meritocracy of the application, I shall first address the issue of the jurisdiction.

29. The court in Narok ELC No. 55 of 2018, a suit brought by the Tenants herein decided on the issue of jurisdiction and stated:

“I have considered the Plaint and the Application and I find that the Plaintiff applicant suit is entirely premised on a tenant landlord relationship between the applicant and the Respondent, if the suit or the application relates to the unpaid rents or on compensation or costs incurred, the operating statute under which this relationship is premised is the Landlord Tenant (Shops, Hotel and Catering establishment) Act and by extension therefore the provisions of section 6 of the Act directs the jurisdiction of this court to hear and determine the dispute herein.”

30. In view of the foregoing, I respectively find that the issue of Jurisdiction was well determined by the superior Court and the doctrine of res judicata and doctrine of estoppel applies.

31. In substantiation of the above disposition, I concur with the learned judge, (Ongeri, J), in the case of Mohamed Dado Hatu v Dhadho Gaddae Godhana & 3 others [2018] eKLR where the court while making reference to the case of Mercy Munee Kingoo & another v Safaricom Limited & another, Malindi Constitutional Petition No. 5 of 2016, the court explained the principle of res judicata and estoppel in the following terms:

“Estoppel by res judicata, or estoppel by record, is a manifestation of the principle that judicial decisions once made must accepted as final and are not open to challenge. Ultimately, it rests on a rule of policy that it is the public interest for thereto be finality in litigation, but it also sustains an important principle that decisions of competent tribunals must be accepted as providing a stable basis for future conduct. The Latin word “res judicata” mean simply “a thing judicially determined.” The mail applies to the claim as a whole (usually referred to as “cause of action estoppel”), or may refer to one or more specific issues which the court was required to decide in the course of reaching its decision on the matter before it (what is generally referred to as “issue estoppel” … The fact that an order is made by consent does not in my view prevent it from giving rise to an estoppel by record, provided that the nature of the order is such that it would otherwise have that effect.”

32. It is my respectful view and finding that an alliance of the said doctrines; estoppel and res judicata, jointly renders a judicially determined issue by a competent Court untenable under other Courts, the same cannot be or form basis of fresh litigation. The attempt by the respondents amounts to instalment-institution of causes and the parties are hereby advised to ensure all issues are raised and tabled in one litigation.

33. I find that this Tribunal fully possesses appropriate jurisdiction to entertain and determine the issues raised in the Notice of Motion by the Landlords.

34. Another prong of the issues to be determined by this tribunal is whether the Injunctive Orders issued on 26th March of 2020 lapse by dint of effluxion of time.

35. Before proceeding to the determination of the issue above, I shall first address the question raised by the Landlord in their submission dated 8th March 2021, the question of whether this Tribunal is legally clothed to issue orders of injunction.

36. Cap 301 specifically section 12 1 (e) state:

(1) A tribunal shall in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power –

(e) to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person whether or not he or she is a tenant, being at the material time in occupation of the premises comprised in a controlled tenancy;

37. The above brings the connotation that in deed the Tribunal can grant Orders on terms as deemed fit.

38. Further, the Court in the case of John Mugo Ngunga v Margaret M. Murangi [2014] eKLR stated:

[12] The issue of powers vested upon the Rent Restriction Tribunal and the orders that it can issue was also covered very broadly by the court of appeal decision in the case of RENT RESTRICTION TRIBUNAL V RAVAL EX-PARTE MAYFAIR BAKERIES LIMITED, [1985] KLR 167 where the court held on page 180 as follows:

“As we see it the powers of the Tribunal are not restricted to those conferred by section 5 of the Act. Section 6 confers upon it the additional powers to investigate any complaints relating to the tenancy of premises made to it by either or tenant or the landlord of such premises. The interested party was a tenant- although a statutory tenant. Which matters not- when he made his complaint to the tribunal. It may be “any” complaint. It matters not if the complaint is in torts or contract or equity or otherwise. The criterion is that the complaint must be relating to the tenancy. Here the complaint in effect is that the tenant was being harassed in the quiet enjoyment of his tenancy. Therefore, the tribunal was empowered to investigate that complaint, and a fortiori under subsection (5) of section 6 it could make such order in then matter as the justice of the case may require being an order which it is empowered to make by the Act.”

[13] on the jurisdiction of the Tribunal to issue an order of injunction, it is clear the judge was right, the jurisdiction is provided for by the Act and that was further fortified by the aforesaid decision of this Court.

39. Turning back to the issue of whether this Tribunal should extend or pronounce the termination of the injunctive orders by effluxion of time, I find that statutory time had not elapsed since the grant of the said orders by the time the Landlord moved this Tribunal, which time is 12 months, the orders having been substantively confirmed on 4th June 2020 these were new orders prayed for and granted being prayers d,e and f different from the ones of 26th March 2020 which the landlord relies upon. It appears the landlord’s application is therefore premature to the extent that the effective date applicable for the expiry of the said orders is 5th June 2021. Which time the matter was effectively before myself for submissions on the landlords’ application.

40. In addition I confirm that the orders were issued at the time when there was a Nationwide cessation of movement of the people due to the novel Corona virus pandemic. Further, the Amendment to allow service through Telephones in the Civil Procedure Rules were not in place and the advocates had in deed not included as essential service providers.

41. While I agree that in deed the Landlord deponent to the effect that the same orders were served to them beyond the limitation of the statutory provisions, I see and recognize the efforts by the tenants seeing the presence of lockdown as at that time.

42. It is also my respectful findings that the Landlord inadvertently or deliberately failed or ignored to attend the hearings of this Tribunal in this suit since last year 2020, despite Hearing Notices being served upon them. The Landlords are better off seeking audience with the court to be heard first than opting for striking out of the tenants’ pleadings and or orders.

43. Order 2 Rule 15 of Civil Procedure Rules espouses striking out of the pleadings by competent court or tribunal. It states;

15. (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—

a) It discloses no reasonable cause of action or defence in law; or

b) It is scandalous, frivolous or vexatious; or

c) It may prejudice, embarrass or delay the fair trial of the action; or

d) It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

44. The Court in the case of DT Dobie & Company (K) Limited vs Muchina [1982] KLR set out the guiding principles of striking out pleadings. In its disposition it stated affirming all the grounds as provided for by the provisions under the said Order, i.e. Order 2 Rule 15 of the Civil Procure rules.

45. In exercising the jurisdiction of this tribunal and particularly on this issue, it is important for the parties to note that, the power of this tribunal to strike out the pleadings, in this case, the Tenants’ Complaints is not mandatory but rather permissive especially on grounds of procedural technicalities. As such, I shall with care handle it judicially with caution in a manner that does not drive the parties from the seat of justice.

46. In the case of Elijah Sikona & Jane Pariken Warok on behalf of Trusted Society of Human Rights Alliance Vs. Mara Conservancy & 5 others civil case No. 37 of 2013 [2014] eKLR the Court when dismissing an application seeking to strike out a Plaint on an assumption that it was an abuse of Court process observed that;

“…. Striking out is a jurisdiction which must be exercised sparingly and in clear and obvious cases. Unless the matter is clear and obvious a party to litigation is not to be deprived of his right to have his suit determined in a full trial. The Court ought to act cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise abuse of Court process.”

47. Similarly, in Tom Odhiambo Achillah T/A Achila T.O & Co Advocates vs Kenneth Wabwire Akide T/A Akide & Co Advocates & 3 Others [2015] eKLR, the court was faced with similar matter of striking out. In its rendition the Court emphasized on the need to considerer nature of the pleading before summary determination. In rejecting the application, the Court cited with the approval the decision in Bank of Credit & Commerce International case in which it was stated:

“Summary determinations of cases are draconian and drastic and should only be applied in plain and obvious cases both as regards the facts and the law. In the matter that alleges the suit is scandalous, frivolous, vexatious and otherwise abuse of court process I must satisfy that the suit has no substance or is fanciful or the Plaintiff is trifling with the Court or the suit is not capable of a reasoned argument. It has no foundation, no chance of succeeding and is only brought merely for purpose of annoyance or to gain fanciful advantage and will lead t no possible good. A suit will be abuse of court process if it is frivolous and vexatious.”

48. I fully concur and associate myself with the above mentioned dispositions. I find that the Landlords had a burden of proving that in deed the complaints by the Tenants amount to an abuse of Court Process and that this tribunal should strike them out.

49. In my careful and cautious analysis, I find the Application by the Landlords to strike out the Tenants’ Complaint destitute of merit because it does not satisfy the essentials of striking out pleadings as above discussed. In addition to being pre mature before this tribunal. In the Wisdom of this tribunal, the Complaints by the raised by the Tenant are on a balance of probability genuinely & properly before this tribunal and therefore deserve a full trial.

50. It is therefore in the interest of justice that the injunctive orders be sustained and extended to allow the hearing of the main suit.

51. Consequently, the upshot of this finding is that this Tribunal dismisses the Landlords application with no orders as to costs.

52. In the circumstances a Hearing date to be fixed WITHIN NINETY (90) DAYS for the tenants’ reference.

53. The orders sought by the Landlords in their Notice of Notion dated 30th March 2021 are denied in their entirety.

ANDREW MUMA

VICE-CHAIRMAN

BUSINESS PREMISES AND RENT TRIBUNAL.

Ruling dated signedand deliveredvirtually byHon A. Mumathis 14th July 2021in the presence ofOmondifor theTenant/Respondentand in the absence of Kinyanjui advocatefor theLandlords.

ANDREW MUMA

VICE-CHAIRMAN

BUSINESS PREMISES AND RENT TRIBUNAL