[2021] KEBPRT 362 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 47 OF 2017 (NAIROBI)

PROCOM COMPUTER TECHNOLOGIES LTD..............TENANT/APPLICANT

VERSUS

AMALGAMATED PROPERTIES LTD................1ST LANDLORD/RESPONDENT

REGENT AUCTIONEERS.....................................2ND LANDLORD/RESPONDENT

RULING

1. Before me is a motion dated 27th January 2021 in which the Tenant is seeking for orders that the Respondent/Landlord and its agents Regent Auctioneers be restrained from levying distress and/or removing the proclaimed goods from its premises.

2. The Tenant further seeks that the Respondent/Landlord its servants, employees and/or its agents be forthwith restrained by this court from harassing/ intimidating the Applicant/Tenant with nefarious proclamations and/or in any other manner interfering with its quiet occupation and peaceable enjoyment of its tenancy at the suit premises known as L.R. No. 209/88288, Hughes building and that the O.C.S Central Police Station do assist in ensuring compliance.

3. The Application is supported by the affidavit of the Applicant’s director one P.S Njoroge sworn on 27th January 2021 and annextures thereto.

4. On 25th January 2021, the Tenant’s goods were proclaimed by Regent Auctioneers for recovery of Kshs.228,891/- in terms of annexture “PN-1”.

5. According to the Applicant/Tenant the proclamation was made in bad faith and in total disregard of the orders given herein on 23rd July 2019 which order is marked as annexture “PN-2”. A second order given on 18th July 2018 and another one given on 22nd May 2017 are also attached.

6. All rent payments made to the Landlord were directed to M/S Chege Kibathi & Co. advocates and the Applicant has attached letters forwarding cheques to the said firm as annexture “PN-3”.

7. The Applicant contends that it had paid rent up to date but the Landlord has failed to provide a reconciliation of the rent account as directed by this Tribunal.

8. It is the Applicant’s case that the Landlord is in contempt of court orders previously issued by this Tribunal not to interfere with its quiet occupation and peaceful enjoyment of the suit premises.

9. It is therefore seeking for restraining orders against the Landlord for the foregoing reasons.

10. Interim orders were granted in terms of prayers 2 and 4 of the application on 29th January 2021.

11. On 10th February 2021, the Respondents filed grounds of opposition to the said application seeking that the same be struck out for being premature, unmerited, out rightly frivolous, misconceived, vexatious and an open abuse of the court process.

12. It is the Respondents’ case that the application fails the basic test set out in the case of Giella – vs- Cassman Brown & Co. Limited (1973) EA 358.

13. The Respondents further contend that the present application is brought by an Applicant who is hopelessly grasping at straws as there is no lease agreement but continues to enjoy possession of the premises and that the broader interests of justice and fairness will be served if the interim orders are vacated.

14. It is also contended by the Respondents that the application lacks substance, is not arguable, frivolous and vexatious as well as an abuse of the court process.

15. It was agreed to file submissions but only the Tenant complied with the said directions.

16. I am now called upon to determine whether or not to allow the application. I am also called upon to determine who is liable to pay costs.

17. I have perused the record and noted that this is the third application in a row in which the Tenant is seeking for similar orders which have previously been granted by the tribunal.

18. The first application was made on 19th January 2017 wherein interim orders were given on 20th January 2017 and confirmed on 22nd May 2017.

19. The second application is dated 16th July 2018 pursuant to which interim orders were given on 18th July 2018 and subsequently confirmed on 23rd July 2019.

20. The same orders are now being sought in the present application and I therefore find and hold that the application is an abuse of court process.

21. A party is not allowed to file a multiplicity of applications in the same court or Tribunal on matters already adjudicated upon as this offends the doctrine of Res Judicata.

22. In the premises, I find and hold that the current application has no merit and is an abuse of court process and is hereby struck out with costs to the Respondents (see the court of appeal decision in Uhuru Highway Development Limited - vs- Central Bank of Kenya & 2 others (1996) eKLR.

23. I also find that the Tenant/Applicant was not granted any immunity against payment of rent in the previous orders and cannot seek protection from this Tribunal from meeting its obligations as a controlled tenant.

24. If the Tenant feels that the Landlord is flouting the previous orders by seeking to recover rent, it should file an application for appropriate redress before the superior court pursuant to section 5 of the Judicature Act.

25. In the premises, the Applicant should set down its main Reference for hearing in the usual manner.

26. The Applicant shall pay costs of the current application assessed at Kshs.25,000/- to the Respondents.

It is so ordered.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 10TH DAY OF AUGUST 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Mr. Nguru for the Tenant/Applicant

Miss Njue holding brief for Wathuta for the Landlord.