https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2925

Rongai Rhumba House Limited v Ariwi & 8 others (Environment and Land Case E131 of 2024) [2026] KEELC 2925 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 2925 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case E131 of 2024 MD Mwangi, J May 15, 2026 Between Rongai Rhumba House Limited Plaintiff and Shem Ariwi 1st Defendant David Ndegwa 2nd Defendant Ken Shadrack Wambu 3rd Defendant Nahashion Kariuki 4th Defendant Daniel Kinywa 5th Defendant Salome Mungai 6th Defendant Sospeter Mburu 7th Defendant Charles Ariwi 8th Defendant Margaret Riaroh 9th Defendant Ruling (In respect of the application dated 31st October 2025 by the 1st Defendant brought pursuant to the provisions of Order 51 Rule 1, Order 2 Rule 15(1) of the Civil Procedure Rules, Article 162(2) of the Constitution of Kenya, Section 13 of the Environment and Land Court Act, Section 9(2) of the Fair Administrative Actions Act, and Section 12(1) of the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act) Introduction 1.The matter coming up for determination is the Notice of Motion Application dated 31st October 2025 filed by the 1st Defendant, Shem Ariwi. The application is brought pursuant to Order 51 Rule 1, Order 2 Rule 15(1) of the Civil Procedure Rules, Article 162(2) of the Constitution of Kenya, Section 13 of the Environment and Land Court Act, Section 9(2) of the Fair Administrative Actions Act, and Section 12(1) of the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act. The 1st Defendant essentially seeks the following principal orders from this Honourable Court:a.That the Plaintiff's suit against the 1st Defendant be struck out with costs for being res judicata in relation to Nairobi Business Premises Rent Tribunal (BPRT) Cause No. E149 of 2023 and Nairobi High Court Civil Appeal No. E 364 of 2023.b.That the Plaintiff's suit against the 1st Defendant be struck out with costs on the grounds that this Court lacks jurisdiction to hear and determine the matter by virtue of Section 13 of the Environment and Land Court Act and Section 12(1) of the Landlord and Tenant Act (Cap 301).c.That the costs of the application and the suit be borne by the Plaintiff. 2.The application is anchored on the grounds set out on the face of the Motion and is further supported by the Affidavit of Shem Eric Arungu Ariwi, the 1st Defendant herein. The 1st Defendant contends that the suit is an abuse of the court process. He avers that the underlying dispute revolves around a tenancy relationship regarding the property known as Title No. Ngong/Ngong/15560 situated in Ongata Rongai. According to the 1st Defendant, the issues raised in the current suit are identical to those conclusively addressed by the BPRT in Cause No. E149 of 2023. He asserts that the Plaintiff's reference at the BPRT was dismissed with costs on 12th May 2023. Furthermore, an appeal lodged by the Plaintiff at the High Court (Civil Appeal No. E364 of 2023) was similarly dismissed with costs. 3.Consequently, the 1st Defendant argues that the Plaintiff is engaging in forum shopping by attempting to have a "second bite at the cherry". He maintains that this Court lacks the original jurisdiction to hear the dispute, as matters arising from business premises squarely fall under the exclusive purview of the BPRT, which is statutorily empowered to award any resulting damages. 4.The application is vehemently opposed by the Plaintiff, Rongai Rhumba House Limited, through a Replying Affidavit sworn on 26th January 2026 by its Director, Barasa Sindani. The Plaintiff characterizes the application as misconceived, frivolous, and a tactical maneuver intended to obfuscate egregious wrongs and delay justice. The Plaintiff asserts that the elements of res judicata have not been met. The prior BPRT proceedings and subsequent appeal were narrowly confined to the validity of a notice to terminate a controlled tenancy under Cap 301. 5.The current suit does not stem from a mere tenancy dispute, but rather from fresh causes of action regarding post-termination tortious acts. These include alleged trespass to land, illegal eviction without due process, inhumane demolition, and the theft and conversion of the Plaintiff's property. The Plaintiff is seeking remedies for the violation of constitutional rights under Articles 40 and 43 of the Constitution, alongside special damages amounting to Kshs. 14,360,000. 6.The current suit impleads nine distinct Defendants, whereas the prior suits only involved the Plaintiff and the 1st Defendant. The Plaintiff argues that six of these Defendants (the 2nd to 7th Defendants) were not parties to the prior suits, and their joint and several liability for the alleged torts cannot be shielded by res judicata. 7.The Plaintiff argues that the BPRT lacks the jurisdiction to address broad tortious claims, multi-party liability, constitutional violations, and the expansive damages sought for willful destruction of property under the Environment and Land Court Act. Directions by the court 8.The application was canvassed by way of written submissions as directed by the court and which have been duly considered in the writing of this ruling. Issue for determination 9.Having carefully considered the Notice of Motion, the Supporting Affidavit, the Replying Affidavit, and the respective submissions by Counsel, the core issue falling for this Court's determination is whether the Plaintiff's suit against the 1st Defendant ought to be struck out on the grounds of res judicata and/or want of jurisdiction. Analysis and Determination 10.The 1st Defendant argues that the present suit is a duplication of Nairobi Business Premises Rent Tribunal (BPRT) Cause No. E149 of 2023 and the subsequent High Court Civil Appeal No. E364 of 2023. The 1st Defendant relies on the Supreme Court's pronouncement in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), which adopted the holding in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR, as follows:“Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights." "The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action." 11.The 1st Defendant further cites Henderson v Henderson (1843) to argue that parties must bring their whole case forward at once. He further relies on Omondi v National Bank of Kenya Limited and others [2001] EA 177, which held that parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit. 12.Conversely, the Plaintiff anchors its opposition on Section 7 of the Civil Procedure Act (Cap 21), which provides that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court". 13.The Plaintiff relies on Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, which established that the elements of res judicata under Section 7 are "rendered not in disjunctive, but conjunctive terms". The Plaintiff distinguishes the present suit by noting it impleads eight additional defendants (the 2nd to 9th Defendants) for joint torts, and raises post-termination claims of illegal eviction, theft, and violations of Articles 40 and 43 of the Constitution. 14.Applying the law to the facts, the BPRT proceedings were strictly limited to the validity of a tenancy termination under Section 7 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301), which states that:“A tenancy to which this Act applies shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant under, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act". 15.From a careful analysis of the pleadings filed, the current suit introduces distinct causes of action in tort (trespass, conversion) and constitutional violations, alongside multiple new defendants who were not parties to the BPRT Cause. As held in Waso Building & Works Co. Ltd v Galgalo & 5 others [2025] KEELC 4719 (KLR), a suit is not res judicata where "the previous suit touched on different aspects". Consequently, the conjunctive test for res judicata is not met in this instance. 16.The 1st Defendant further contends that the Plaintiff's remedies lie exclusively with the BPRT, citing Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), to the effect that:“A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law." 17.However, the BPRT's statutory mandate under Section 12(1) of Cap 301 is restricted in the following words:“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". 18.By contrast, the Environment and Land Court derives robust jurisdiction from Article 162(2)(b) of the Constitution over "disputes relating to the environment and the use and occupation of, and title to, land". This is operationalized by Section 13(1) of the Environment and Land Court Act, 2011:“The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land". 19.Since the Plaintiff's claims involve alleged tortious acts of trespass, destruction of property, and unlawful eviction, original jurisdiction properly lies with this Court. 20.Finally, striking out a pleading is a draconian measure. The guiding principle was aptly captured in DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, where the court stated that:“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption".The Court further advised that,“the court ought to act very 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 an abuse of the process of the court". 21.The Plaintiff's suit raises substantive and triable issues regarding multi-party liability, constitutional violations, and tortious damages that transcend a mere landlord-tenant dispute. Dismissing the suit summarily would run afoul of the principles of access to justice. 22.In view of the foregoing analysis, I find that the Plaintiff's suit is neither barred by the doctrine of res judicata nor devoid of the requisite jurisdictional foundation before this Court. The claims presented deserve a full hearing on their merits. 23.Consequently, the 1st Defendant's Notice of Motion dated 31st October 2025 lacks merit and is hereby dismissed with costs to the Plaintiff.Ordered accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Waigwa for the PlaintiffMr. Ojwang for the 3rd DefendantMr. Ondabu for the 1st Defendant/ApplicantN/A by the 2nd, 4th – 9th DefendantsCourt Assistant: AlexM.D. MWANGIJUDGE