[2022] KEBPRT 219 (KLR)

Matu v Karuri (Tribunal Case E178 of 2021) [2022] KEBPRT 219 (KLR) (Civ) (27 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 219 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E178 of 2021

Gakuhi Chege, Vice Chair

May 27, 2022

Between

Alice Wanjiku Matu

Applicant

and

Naomi Waithira Karuri

Respondent

Ruling

1. Before me is a motion dated January 14, 2022 in which the landlord seeks for the following orders:(i)That this honourable Tribunal be pleased to set aside the ex-parte orders herein issued on October 19, 2021 against the Landlord/Respondent and all consequential decrees thereto.(ii)That the Tribunal deems the Landlord/Respondent’s replying affidavit dated January 13, 2022(and filed in response to the notice of motion dated October 14, 2021) as duly filed and properly on record.(iii)That the Tribunal do order the Tenant/Respondent to resume payment of rents payable in the lease agreement to the Landlord/Applicant.(iv)That the Tribunal be pleased to set down the notice of motion dated May 31, 2021for an expeditious hearing.(v)That the costs of the application be in the cause”.

2. The application is supported by the affidavit of the Landlord sworn on even date and the grounds on the face thereof.

3. The orders of October 14, 2021 were to the following effect:-(i)The tenant is allowed to reconnect water and electricity to the demised premises and restore and/or reinstitute the access road and also construct proper drainage system to the same at her own cost and expense and recover such cost and expenses from further rent payable to the Landlord/Respondent until the same is fully recovered pending the hearing inter-partes.(ii)The OCS Mugutha Police Station to ensure compliance with the orders.(iv)The application shall be served for hearing interpartes on November 1, 2021. (v)The applicant to file affidavit of service”.

4. On November 21, 2021, the matter came up for hearing interpartes when the Landlord’s new counsel sought for time to file an application for review of the orders of October 14, 2021and was granted 14 days to do so. The matter was then fixed for mention December 2, 2021.

5. on December 2, 2021, the tenant sought for time to respond to the application dated November 14, 2021and was granted 14 days to do so. The matter was then fixed for mention on January 18, 2022. On 18/1/2022, the matter was mentioned when it turned out that the landlord had filed the application dated January 14, 2022.

6. The application by the landlord is opposed through the tenant’s replying affidavit of April 8, 2022 which terms it as an abuse of court process as it was filed in the pendency of another application by the landlord dated November 13, 2021seeking similar reliefs as per annexure ‘AWM1’. I have however perused the court record and the said application appear not to have been filed herein.

7. The application is opposed on the second ground that the landlord had been cited for contempt of court vide the application dated October 14, 2021 which was still pending. The application is said to be a diversionary tactic aimed at ‘defiling’ the course of justice.

8. The landlord is accused of seeking equitable relief yet she has come to equity with unclean hands in that she has blatantly disobeyed a court order, a fact she has readily admitted in her submissions at page 2 thereof.

9. I am now required to determine the following issues:-(a)Whether the landlord is entitled to the orders sought in the application dated January 14, 2022. (b)Who is liable to pay costs of the application?.

10. The application was ordered to be disposed of by way of written submissions and both parties complied. I shall consider the same together with the issues set out above.

11. The application is premised on the grounds that the landlord was never made aware of the proceedings against her and was therefore condemned unheard. As such the orders are sought to be set aside on the basis that they were granted without any representation from the landlord.

12. It is contended that there are sound reasons and sufficient cause why the landlord despite good efforts to observe and comply with the orders of the court:’’may have lagged behind on certain aspects of the orders of the honourable Tribunal which became unfeasible to implement”.

13. The Tenant is accused of abuse of court process for using the orders of the Tribunal “ to grant herself a carte blanchepermission to grab further land in the retained area, the property of the landlord/Applicant by expanding her occupation without any backing of the law”

14. The tenant is further accused of open impunity and recklessness for constructing new structures in areas not covered in existing lease agreement, attempt to evict pre-existing tenants who fall outside the area in dispute and proceeding to lay a new road of access in areas not covered in existing agreement to the nuisance of other tenants within the property.

15. The orders are said to be a blank cheque of a semi permanent nature to the tenant with the effect that the resolution of this dispute may be in jeopardy which was injurious to the landlord and unjust as it may encourage her to erect/construct anything and seek to recover costs against the rents payable and as such encourage the tenant not pay rent.

16. The orders are also said to risk the landlord’s right over the property and is an affront to the law and just arbitration of the dispute.

17. The landlord accuses the tenant of failure to disclose that the lease was unregistered and would not confer any legally enforceable rights on the tenancy and the same did not give room to any further infrastructural developments such as landscaping, drainages and roads within the property.

18. According to the landlord, the tenant failed to disclose that there was only one single access road prior to the tenancy which she continued to use.

19. It is contended that it is fair and just that the burden on the landlord/applicant to comply with the stated orders, some of which are impossible to accomplish be cured so that the substantive dispute can be gone into.

20. It is imperative to note that the impugned orders of October 19, 2021were consequential to the orders of September 14, 2021 which were issued pursuant to a ruling delivered herein on the same date.

21. Orders no. 4 and 5 thereof were couched in the following terms:-4. The Landlord/Respondent is hereby ordered to reconnect electricity and water to the Tenant/Applicant’s premises forthwith and thereafter she be restrained from interfering with the same.5. The Landlord/Respondent is hereby ordered to restore and/or reinstitute the original access road as it existed at the commencement of the tenancy herein in July 2020”.

22. The exparte orders issued on October 19, 2021were made on the basis that the landlord had blatantly disobeyed the said court orders and ought to be punished for contempt of court. The said application is still pending.

23. All the issues raised in the instant application were raised or ought to have been raised in the application leading to the said orders of September 14, 2021. No appeal or application for review has been preferred against the said orders and in my considered view the issues herein are res Judicata by dint of section 7 of the Civil Procedure Act, cap 21 Laws of Kenya.

24. I am fortified in the foregoing holding by the Supreme Court of Kenya decision in John Florence Maritime Services Limited &another v Cabinet Secretary, Transport and Infrastructure & 3others (2021) eKLR where it was held at paragraph 59 as follows:-The courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicataprinciple was judicially remarked in ET v Attorney General & another (2012) eKLR thus:-“The courts must always be vigilant to guard against evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others (2001) EA 177, the court held that “parties cannot evade the doctrine of res judicataby merely adding other parties or causes of action in a subsequent suit”. In that case the court quoted Kuloba J in the case ofNjangu v Wambugu and another Nairobi HCCC No 2340 of 1991(unrepresented) where he stated. “if parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…………”.

25. The term “suit” is defined under section 2 of the Civil Procedure Act, cap. 21 Laws of Kenya to mean,“.all Civil proceedings commenced in any manner prescribed”.As such an application being a civil proceeding commenced under order 51 of the Civil Procedure Rules can be res judicata if the same issue arises in a subsequent application. I find and hold that the issue of connection of water and electricity as well as the road of access having been dealt with in the application dated 11th June 2021 cannot be litigated afresh before me. I am in this regard guided by the decision of the court of appeal in Uhuru Highway Development Limited v Central Bank of Kenya & 2 others (1996) eKLR at pages 8-9).

26. In regard to prayers 2 & 4 of the application the same are merited and are allowed.

27. Prayer 3 shall however await a second inspection by this Tribunal’s Rent Inspector on a date to be agreed upon by the parties since resumption of rent payment is predicated upon compliance with the Tribunal orders of September 14, 2021 and October 19, 2021.

28. 28 . In conclusion therefore, the application dated January 14, 2022 is dismissed in respect of prayer 1 and allowed in respect of prayers 2 & 4. Prayer 3 shall await a second visit by this Tribunal’s Rent Inspector and report on the status of compliance with orders of September 14, 2021and October 19, 2021on a date to be agreed upon by the parties or to be fixed by the Rent Inspector with notice to both parties. The costs of the application shall be in the cause.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Ngugi for the Tenant/RespondentOtieno for the Landlord/ApplicantFurther order : Mention of the case on 8/7/2022. Parties to arrange for the Rent Inspector’s visit.HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNAL