[2025] KEBPRT 237 (KLR)

Sintronics Limited v Kenya Airports Authority (Tribunal Case E1230 of 2024) [2025] KEBPRT 237 (KLR) (24 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 237 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1230 of 2024

P Kitur, Member

April 24, 2025

Between

Sintronics Limited

Tenant

and

Kenya Airports Authority

Landlord

Ruling

A. Parties 1. The Landlord is the registered owner of the premises known as Building/Space No. 42 situated at Wilson Airport, hereinafter referred to as the suit premises.

2. The Landlord is represented by the firm of Macharia Mwangi & Njeru Advocates.

3. The Tenant operates a business within the suit premises.

4. The Tenant is represented by the firm of Kithinji Marete & Company Advocates

B. Dispute Background 5. The Tenant approached this Honourable Tribunal on 9th November 2024 by way of a Reference, alleging that the Landlord unlawfully denied it access to the suit premises and its business assets therein, without issuance of proper notice. The Tenant further contended that the alleged subdivision of the premises was unreasonable, unfair, and unjustified.

6. Simultaneously, the Tenant filed an Application under a Certificate of Urgency dated 9th November 2024, seeking, inter alia, injunctive orders restraining the Respondent, its employees, and agents from interfering with the Tenant’s quiet possession of the premises pending the hearing and determination of the Reference.

7. Upon due consideration of the Reference and the Application, this Tribunal issued interim injunctive orders on 11th November 2024. These orders prohibited the Respondent from leasing any portion of or interfering with the Applicant’s quiet possession of the premises and compelled the Respondent to restore access to the suit premises pending the determination of the Application.

8. The Tribunal further directed that the Application be served for inter partes hearing on 28th November 2024.

9. In response, the Respondent filed a Replying Affidavit dated 20th January 2025, sworn by Mr. Muchiri Wachira, its Marketing and Business Development Officer. He averred, inter alia, that the Applicant lacks a valid tenancy contract and relied on a letter dated 30th March 2012 in support of that contention.

10. The Respondent further alleged that the Applicant remained in quiet possession without interference, sharing the premises with its sister company, Avionicare EA Limited, without written consent. The Respondent denied any subdivision of the premises.

11. On the same day, the Respondent also filed a Notice of Preliminary Objection asserting that the present proceedings are sub judice, as the issues raised herein are identical to those pending before the High Court in Judicial Review Case No. HCJRMISC/E072/2023 – Nairobi Wilson Tenants Association v Kenya Airports Authority & Cabinet Secretary for Roads and Transport. Accordingly, it was argued that the present Application is an abuse of the court process and offends Section 9(2) of the Fair Administrative Action Act.

12. In rebuttal, the Applicant filed a Further Affidavit dated 19th February 2025, noting that a stay order was issued on 19th December 2023 in the Judicial Review case, and that the Respondent’s actions precipitated the present Reference.

13. The Applicant maintained that the present proceedings relate to the enforcement of rights arising from a controlled tenancy, whereas the Judicial Review proceedings challenge the propriety of administrative decisions.

14. Subsequently, on 20th February 2025, this Tribunal directed the parties to file their written submissions, which were duly filed.

15. The matter now comes up for Ruling on the Landlord’s Notice of Preliminary Objection dated 20th January 2025

C. Issues For Determination 16. The central issue for determination is:1. Whether the present suit is sub judice and consequently an abuse of court process

D. Analysis And Findings 17. Having carefully reviewed the affidavits, submissions, and legal authorities cited by both parties, I now proceed to determine the Preliminary Objection raised by the Respondent.

18. The starting point is to define what a preliminary objection is. Pursuant to the provision of Order 2 Rule 9 of the Civil Procedure Rules, a Preliminary Objection should be raised on a pure point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit.

19. The case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection where their Lordships observed thus:“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.

20. Respondent has raised a point of Preliminary Objection to the effect that the instant suit and High Court Judicial Review case no. HCJRMISC/ E072/2023-Nairobi Wilson Tenants Association Vs Kenya Airports Authority and Cabinet Secretary for Roads and Transport raise similar issues both directly and substantially.

21. A Preliminary Objection cannot be based on disputed facts. I have perused the evidence before me and it is crystal clear that it is not in dispute that there exists another suit between the same parties over the same subject matter. The Respondent has also annexed a copy of the Application dated 25th January 2024 before High Court Judicial Review Division.

22. Section 6 of the Civil Procedure Act provides that:-“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

23. The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR put emphasis on the subject of sub judice as follows;“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

24. It is obvious from the above that the sub judice rule only applies where another “suit or proceeding is pending” in another court involving the same parties and over the same subject.

25. Upon perusal of the annexures presented by the Respondent, it is evident that the suit previously instituted in the High Court Judicial Review case no. HCJRMISC/E072/2023 involves the Wilson Tenants Association, in which the Applicant is a member, and the Kenya Airports Authority, who is the Respondent in the present matter.

26. Although the Applicant is not a direct party to the Judicial Review proceedings, it is clear that the Association is litigating on behalf of its members, including the Applicant. Therefore, the parties in both suits are either the same or litigating under a common interest and title.

27. In HCJRMISC/E072/2023, the orders sought by the Association are aimed at restraining the Respondent from enforcing increased license fees for the use of the suit premises and challenging the legality of the notices issued on 15th and 22nd March 2023.

28. These notices are alleged to have been issued without proper legal basis under the Kenya Airports Authority Act. On the other hand, the instant suit before this Tribunal seeks to restrain the Respondent from interfering with the Applicant’s quiet possession of the suit premises and to prohibit any unilateral alteration of the tenancy terms.

29. While the reliefs sought differ in form, both suits arise from the same underlying dispute—namely, the Respondent’s actions affecting the Applicant’s occupation and contractual rights over the suit premises.

30. A closer examination reveals that the Notification of Award referred to in the proceedings pertains to the renewal of tenancy contracts for specific tenants, including terms relating to rent and duration. The Application before this Tribunal effectively calls upon it to interrogate and potentially reverse the Respondent’s alterations to those tenancy terms. This would inevitably invite a determination on issues substantially similar to those pending in the High Court. Such a scenario risks parallel proceedings arriving at conflicting decisions over the same subject matter, thereby undermining the orderly administration of justice.

31. Going by the Supreme Court decision (Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (supra); the suits are found to be as between the same parties or those claiming under them over the same subject matter and this court finds that the outcome of one suit may affect the outcome of the other suit which may result in the courts to issue conflicting decisions over the same subject matter.

32. That brings me to the appropriate remedy. Should the present suit be struck out or merely stayed?

33. In addressing this issue, this Tribunal is guided by the authoritative pronouncement of Mativo J. (as he then was) in Republic v Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya [2020] eKLR, where he held that:“…The concept of sub judice dictates that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit is ongoing. In such a situation, an order is passed by the subsequent court to stay the proceedings, and such an order can be made at any stage.”

34. The learned counsel for the Landlord has urged this Tribunal to dismiss the present suit pursuant to Section 6 of the Civil Procedure Act. However, upon careful consideration, this Tribunal is not inclined to adopt such an approach.

35. In my considered view, Section 6 does not expressly provide for the striking out of a suit where the doctrine of sub judice applies. Instead, the statutory provision mandates that in circumstances where sub judice is established, the appropriate remedy is to stay the proceedings.

36. Consequently, guided by the foregoing legal principles and judicial precedents, I hold that the appropriate remedy in this instance is to stay the proceedings pending final determination of the High Court Judicial Review case on 6th May 2025.

E. Orders 37. In light of the forgoing this court makes the following findings and determination;i.The Preliminary Objection dated 20th January 2025 is upheld.ii.The proceedings in Tribunal Case No. E1230 of 2024 are hereby stayed pending the final determination of High Court Judicial Review Case No. HCJRMISC/E072/2023 on 6th May 2025. iii.Costs shall abide the outcome of the main suit.iv.Mention on 29th May 2025 to apprise Tribunal on status of HCJRMISC/E072/2023.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 24TH DAY OF APRIL 2025 IN THE PRESENCE OF MS. NJIHIA HOLDING BRIEF FOR NJAGI FOR THE LANDLORD AND MS. MURIITHI HOLDING BRIEF FOR MARETE FOR THE TENANT.HON P. KITUR - MEMBERBUSINESS PREMISES RENT TRIBUNAL