[2022] KEBPRT 716 (KLR)

Samuel Ndegwa T/A Aberdare Resort v Muiruri (Tribunal Case E038 of 2022) [2022] KEBPRT 716 (KLR) (Civ) (8 September 2022) (Ruling)

Neutral citation: [2022] KEBPRT 716 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E038 of 2022

Gakuhi Chege, Vice Chair

September 8, 2022

Between

Samuel Ndegwa T/A Aberdare Resort

Applicant

and

Nickson Muiruri

Respondent

Ruling

1. The tenant herein moved this tribunal by a reference under 12(4) of cap301, laws of Kenya dated March 15, 2022 complaining that the landlord had instructed Nasioki Auctioneers to attach his goods and further sought that the landlord be ordered to render accounts.

2. The tenant simultaneously filed a notice of motion of even date seeking orders to restrain the auctioneers from removing the proclaimed goods from the suit premises pending hearing of the application and reference. He also seeks for an order that the landlord do produce a rent book and receipts for the payments done by him to enable computation of disputed sum and to ascertain existence of any arrears and that the OCS, Central Police Station ensures compliance should need arise.

3. The landlord filed a notice of preliminary objection dated March 24, 2022 to the effect that the tenant’s application dated March 15, 2022 is res judicata since the issues therein were heard on merit and determined in Nakuru BPRT Case No 53 of 2021 between Samuel Ndegwa T/A Aberdare Resort v Nickson Muiruri & 2 others. The second ground is that the application is a non-starter, incompetent, bad in law, a sham, vexatious, malicious and an abuse of the court process only fit for striking out with costs to the landlord.

4. Interim orders had been issued in favour of the tenant on March 17, 2022 and on March 25, 2022, the preliminary objection was directed to be disposed of by way of written submissions. The landlord filed submissions dated April 8, 2022 while the tenant filed submissions dated July 21, 2022.

5. According to the landlord, the issues raised in this matter were heard and determined on merit in Nakuru BPRT Case No 53 of 2021 between the same parties and as such the matter is res judicata on the authorities of Accredo AG & 3 others v Steffano Uccelli & another [2019] eKLR & Independent Electoral & Boundaries Commission v Maina Kiai & 5others [2017] eKLR and was also an abuse of court process on the authority of Satya Bhama Gadhi v Director of Public Prosecutions & 3 others [2018] eKLR all of which decisions I have read.

6. According to the landlord, this tribunal in a ruling delivered on January 7, 2022 in Nakuru BPRT Case No 52 of 2021 at paragraphs 22, 37 & 45 rendered itself on the same issues sought to be litigated in this case by the tenant and held that the landlord was entitled to use lawful means to recover rent based on clause 6 of the tenancy agreement dated February 7, 2017. It was further held that the tenant had the burden to prove that it had paid rent to the date of filing the application in line with section 107 of the Evidence Act.

7. As such, it is the landlord’s submission that the preliminary objection meets the legal threshold set out in the case of William Kiprono Towett & 1597 others v Farmland Aviation Ltd & 2 others [2016] eKLR which followed the locus classicus case of Mukisa Biscuits Manufacturing Ltd v West End Distributors Co Ltd (1969) EA 696.

8. It is the landlord’s submission that the tenant’s application and in particular prayers (2) and (3) thereof not only reopens and/or seek to relitigate issues heard and determined with finality by this tribunal but also shifts the legal burden of proof that the tenant/applicant fully paid rent as per the agreement to the landlord contrary to well established legal principles which must be nipped in the bud by the honourable tribunal.

9. On the other hand, the tenant admits having filed Nakuru BPRT Case No 53 of 2021 contending that the landlord had illegally increased rent contrary to cap 301 and sought restraining orders against him from proclaiming the tenant’s property and from illegal increase of rent. The tribunal in its ruling held that the landlord could not claim Kshs 10,000/- on account of extra space and that the increment was thus illegal.

10. According to the tenant, he has no arrears on the basis of documentary evidence of payments made to the landlord via Mpesa and that no receipts had been issued.

11. It is the tenant’s contention that the preliminary objection does not raise a pure point of law as it will require the parties to table facts and interrogate evidence before the Tribunal. The tenant’s counsel relies in this regard on the case of Omondi v National Bank of Kenya Ltd & 2 others [2001] eKLR wherein it was held that the court is entitled to look at the pleadings and other relevant matters in its records and it was not necessary to file affidavit evidence on those matters.

12. According to the tenant, the two matters are not similar in nature and reliefs and require to be heard and determined on merit. The tenant cites the case of JN & 5 others v Board of Management St G School Nairobi & another [2017] eKLR on what constitutes a preliminary objection. It is the tenant’s contention that rent arrears are contested which calls for accounts to be taken which was not prayed for in the previous case. He also relies on the case of Kenya Breweries Limited & Another v Keroche Breweries Limited [2020] eKLR where it was held that the court has to be satisfied that there is no proper contest as to the facts.

13. On the second ground of preliminary objection, the tenant relies on the case of Mehbu Gelan Kilil & others v Abdul Kadir Sharrif Abdirhim & others [2015] eKLR where it was held that an averment that a suit is bad in law, misconceived and disclosed no reasonable cause of action cannot be entertained and sustained through a preliminary objection.

14. I have considered the pleadings and submissions by both parties and there is no dispute that both parties participated in Nakuru BPRT case No 53 of 2021 in which the tenancy between them as Landlord and tenant was in issue and a ruling thereon was delivered on January 7, 2022 in the following terms:-"i.The application dated April 19, 2021 is dismissed.ii.The ex-parte orders given on April 21, 2021 are hereby discharged and/or vacated.iii.The tenant’s reference is allowed to the extent that the landlord’s are disentitled to charge a sum of Kshs 10,000/- per month in respect of the purported extra space used by the tenant.iv.The landlord’s are entitled to use lawful means to recover rent based on clause 6 of the tenancy agreement dated February 7, 2017. v.Each party shall bear own costs of the suit”.

15. I have looked at the pleadings in both cases and I am satisfied that the issues and reliefs sought in both cases are similar in all respects and as such res judicata under section 7 of the Civil Procedure Act, cap 21, laws of Kenya.

16. In the case of John Florence Maritime Services Limited & another v Cabinet Secretary, Transport & Infrastructure & 3 others [2021] eKLR, the Supreme court of Kenya at paragraph 81 held as follows:-“81. We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits which would ordinarily clog the courts apart from occasioning unnecessary costs to the parties and ensures that litigation comes to an end and the verdict duly translates into fruit for one party and liability for another party conclusively. To further bolster our position, we borrow from the decision from India in Karam Chand & another v Union of India and others delivered on April 24, 2014 where it restated the principles upon which the doctrine of res judicata is founded as follows:-“29. It is clear that the role of res judicata is mandatory in its application and should be invoked in the interest of public policy and finality. The matter which have actually been decided could also apply to the matters which have been impliedly and constructively decided by the court. These principles are to be applied to preserve the doctrine of finality rather than frustrate the same. The doctrine of res judicata is the combined result of public policy as to prevent repeated taxing of a person to litigation………” (emphasis mine).

17. In the case of Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] eKLR at page 117, the court of appeal held as follows:-“Where a given matter becomes the subject of litigation in, and adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, only because they have from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time”.

18. I am therefore convinced beyond any peradventure that the issues raised in this matter are on all fours similar to these in the previous case and this matter is therefore an outright abuse of court process. This is moreso in the light of the fact that the tenant did not disclose in his pleadings about existence of the previous suit and thus obtained interim orders through concealment of material facts relevant to the case. The said orders ought to be discharged/set aside forthwith.

19. As regards costs, the same are in the court’s discretion and always follow the event unless for good reasons otherwise ordered. I have no reasons to deny costs to the respondent.

20. In conclusion, the final orders which commend to me are:-a.The landlord’s/respondent’s preliminary objection dated March 24, 2022 is upheld and the application dated March 15, 2022 and the reference of even date are hereby struck out with costs.b.The interim orders given on March 17, 2022 are hereby set aside/discharged.c.The landlord is entitled to use lawful means to recover the rent arrears due by the tenant in respect of the suit premises as ordered on December 7, 2021 in Nakuru BPRT No 53 of 2021. d.The tenant shall pay Kshs 30,000/- to the landlord as costs of this suit.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 8TH DAY OF SEPTEMBER 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Mr Ouma for the landlord/respondent.No appearance for the tenant/applicant.