[2024] KEBPRT 1069 (KLR)
The Tribunal found that the matter had already been conclusively determined by previous orders issued on 19.09.2023 and 27.11.2023, which granted the landlord leave to levy distress for rent arrears and closed the file except for the issue of eviction. The subsequent application by the landlord, seeking similar...
Source-derived case information.
- Citation
- [2024] KEBPRT 1069 (KLR)
- Parties
- Applicant: Mary Thama Nyongo; Respondent: Dominic Stoney Waweru
- Court
- Business Premises Rent Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E817 of 2023
- Procedural Posture
- Tribunal Application / Ruling on Preliminary Objection and Application
- Outcome
- Preliminary objection dismissed; matter closed.
- Judges
- CN Mugambi
- Legal Topics
- Landlord Tenant Disputes, Distress for Rent, Res Judicata, Tribunal Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Thama Nyongo
Applicant
Dominic Stoney Waweru
Respondent
Procedural Posture
Tribunal Application / Ruling on Preliminary Objection and Application
Legal Issues
- 1 Whether the application dated 08.04.2024 is maintainable given the prior closure of the matter by the Tribunal.
- 2 Whether the preliminary objection by the tenant can be sustained in light of previous orders and the doctrine of res judicata.
Ratio Decidendi
The Tribunal found that the matter had already been conclusively determined by previous orders issued on 19.09.2023 and 27.11.2023, which granted the landlord leave to levy distress for rent arrears and closed the file except for the issue of eviction. The subsequent application by the landlord, seeking similar reliefs with an updated rent figure, was deemed to be res judicata as it sought to reopen issues already decided. The Tribunal held that the tenant's preliminary objection could not succeed because the orders in question were still valid and binding, and the proper procedure for challenging them was not by way of preliminary objection but through appeal or review. Accordingly, the...
Court Disposition
Preliminary objection dismissed; matter closed.
Orders
- The preliminary objection by the tenant is dismissed.
- The matter is closed and remains closed.
Full Case Text
Judgment text and source record
21 paragraphs
Nyongo v Waweru (Tribunal Case E817 of 2023) [2024] KEBPRT 1069 (KLR) (24 July 2024) (Ruling)
Neutral citation: [2024] KEBPRT 1069 (KLR)
Republic of Kenya
In the Business Premises Rent Tribunal
Tribunal Case E817 of 2023
CN Mugambi, Chair
July 24, 2024
Between
Mary Thama Nyongo
Applicant
and
Dominic Stoney Waweru
Respondent
Ruling
1. On 19. 4.2024, the motion by the Landlord dated 08. 04. 2023 was fixed for hearing on 29. 04. 2024. On 29. 04. 2024, the court issued directions on the hearing of the Application and fixed the same for mention on 31. 05. 2024. On 31. 05. 2024, the court ordered the preliminary objection and the Application to be heard together. The parties were further directed to file written submissions within fourteen (14) days.On 13. 06. 2024 when the matter came up for mention, none of the parties attended and the Ruling was fixed for 15. 07. 2024.
2. I have had the benefit of perusing the court file and I do note the following;-a.That on 24. 8.2023, the Landlord’s Application dated 21. 08. 2023 was fixed for hearing on 19. 9.2023. On 19. 9.2023 when the Application dame up for hearing, the court made the following orders;-“The Notice of motion dated 21. 8.2023 is allowed as follows;i.Prayer (2) but without the component of interest.ii.Prayer (3) in its entirety.iii.Prayer (5) in its entirety.The Applicant requires to do the necessary to effect prayer (4) of the motion. The Applicant will fix the Reference herein for hearing on priority.”The upshot of this order by the court is that the following orders were issued;-a.That the Landlord was granted leave to levy distress for rent arrears amounting to Kshs. 1,540,000/= without the interest of 5% prayed for.b.That the Tenant was prohibited/restrained from recovering any assets from the premises.c.That the police assistance requested for was granted.
3. On 8. 11. 2023, the Landlord filed another Application wherein she prayed that the court be pleased to waive the 10% duty filing fees on distress. The court record indicates that this Application was allowed on 27. 11. 2023 and the file closed by Hon. Makori.
4. It is therefore clear that by the time the Landlord was filing the Application dated 08. 04. 2024, this matter had already been closed by the Tribunal as the only prayer disallowed was that one of eviction and for which the court had ordered the Landlord to take the necessary steps to effect. In any case, I also note that the Application dated 08. 04. 2024 is on all fours with the one dated 05. 04. 2023 save that the rent demanded has now been changed to Kshs. 1,960,000/= up from Kshs. 1,540,000/=.The motion dated 08. 04. 2024 would therefore not be one for granting in the circumstances and borders on being, if not actually res judicata.
5. It is my finding therefore that this matter was concluded by the orders of Hon. Makori issued on 27. 11. 2023 as read together with orders issued by Hon. Ndegwa on 19. 09. 2023 and in view of the life and validity of the said orders, the Tenant cannot challenge the same by way of a notice of preliminary objection.
6. Consequently, the Preliminary objection by the Tenant is dismissed and for the avoidance of doubt, this matter is closed and remains closed.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24THDAY OF JULY, 2024. HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Chege for the Respondent and in the absence of the Applicants and Counsel.