[2025] KEBPRT 255 (KLR)

Uchumi Supermarkets Limited v Hot Spot Coffee Lounge (Tribunal Case E530 of 2024) [2025] KEBPRT 255 (KLR) (28 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 255 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E530 of 2024

P Kitur, Member

March 28, 2025

Between

Uchumi Supermarkets Limited

Landlord

and

Hot Spot Coffee Lounge

Tenant

Ruling

A. Parties 1. The landlord is the registered owner of the property comprising of approximately 6,500 square feet on ground floor of Uchumi Langata Hyper Branch off Langata Road (hereinafter referred to as ‘the suit premises’).

2. The firm of Waithera Kinuthia & Company Advocates represents the Landlord.

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

4. The firm of Sheunda & Company Advocates represents the Applicant.

B. Dispute Background 5. The Landlord approached this Honourable Tribunal on 6th May 2024 by way of a Reference and an Application filed under a Certificate of Urgency of the same date. This urgent filing was necessitated by the Tenant’s refusal to vacate the suit premises despite being issued with a Termination Notice dated 29th December 2023 and further failing to respond by filing a Reference. Consequently, the Applicant sought orders, inter alia, compelling the Tenant to vacate the suit premises.

6. Upon considering the Reference and Application dated 6th May 2024, this Honourable Tribunal, on 7th May 2024, issued interim orders that the Application be served for hearing on 5th June 2024.

7. In response, the Respondent filed Grounds of Opposition to the Notice of motion dated 27th May 2024, contending, inter alia, that the Notice of Motion was an abuse of due process as the same had already been filed before the Magistrate’s Court.

8. Moreover, the Respondent argued that there was an ongoing case filed at the Milimani Commercial Court prior to the institution of this instant suit, seeking same reliefs.

9. Additionally, the Tenant filed an Application dated 3rd February 2024, seeking to have the Application dated 6th May 2024 struck out on the basis that there were pending suits, namely CMCC E5461 of 2023, Hot Spot Coffee Lounge vs Uchumi Supermarkets Limited, and CMCC E1983 of 2024, Hot Spot Coffee Lounge vs Uchumi Supermarkets Limited & Lawrence Ngao & 2 Others, both of which were within the Landlord’s knowledge

10. Further, he filed Notice of Preliminary Objection dated 24th January 2025, on the grounds inter alia that the reference is defective hence should be struck out, however the tribunal dismissed the Preliminary Objection vide its Ruling dated 26th February 2025.

11. Conversely, the Landlord filed a Replying Affidavit dated 5th March 2025 asserting that the Tenant’s Application is an abuse of court process as he has been forum shopping in different courts with the aim of frustrating the Termination Notice.

12. Furthermore, the Tenant filed further Affidavit dated 7th March 2025, in which he relied on the contents of his Application dated 3rd May 2025.

13. As such on 20th March 2025, the tribunal gave directions for the parties to file their submissions and they have duly complied with.

14. Consequently, this matter is now coming up for a Ruling of the Tenant’s Application dated 3rd February 2025.

C. Issues For Determination 15. Upon a thorough examination of the Application and the submissions filed by the respective parties, the primary issue that arises for determination is:i.Whether the suit herein is sub-judice?

D. Analysis And Findings 16. In determining the merits of the Tenant’s Application dated 3rd February 2025, I must first address the critical question of what constitutes sub judice and under what circumstances a matter may be deemed sub judice in law.

17. According to Black Law Dictionary 9th edition, sub judice means-‘‘Beforethe Court or Judge for determination.’’

18. I am further guided by the the provisions of Section 6 of Civil Procedure Act defines the above principle or the doctrine as follows;‘‘…….. No court shall proceed with the trial of any suit or proceedings 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 court or any other court having jurisdiction in Kenya to grant the relief claimed.’’

19. In relying the Supreme Court decision in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR that stated: -“…The purpose of the sub judice rule is to stop the filing of 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.”

20. In applying the above principles to the present matter, I note from the parties' submissions that it is undisputed that:1. the suits involve the same parties,2. they pertain to the same subject matter, and3. the Tenant instituted the Magistrate’s Court suit prior to this present suit.

21. What is in dispute is the ground that both suits pending are before courts of competent jurisdiction.

22. For clarity, it is important to first establish what this Tribunal’s jurisdiction is, whether it extends to the dispute between the parties and whether Magistrates’ Court is similarly clothed with competent jurisdiction for the matter to be termed as being similar to the one pending before another Court of competent jurisdiction and therefore sub judice.

23. It is clear by the admission of both parties that at present, there is no written agreement governing their engagement with respect to the tenancy on the premises.

24. Under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, a controlled tenancy means a tenancy of a shop, hotel or catering establishment;a)Which has not been reduced into writing ORb)Which has been reduced into writing and which;i.Is for a period not exceeding five years ORii.Contains provision for termination otherwise than for breach of covenant within five years from the date thereof ORiii.Relates to premises of class specified under subsection (2) of this section.

25. In light of the foregoing, the Court must ascertain whether the three suits in question have been filed before courts of concurrent jurisdiction. It is trite law that a Court must always satisfy itself as to its jurisdiction before adjudicating upon any matter.

26. The concept of jurisdiction has been authoritatively defined in Words and Phrases Legally Defined Vol. 3 by John Beecroft Saunders as follows:“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics… Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given."

27. The source of a Court’s jurisdiction has been definitively settled by the Supreme Court of Kenya in the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Others (2012) eKLR, where the Court stated:“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… Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."

28. Notably, The Court of Appeal, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 Others [2018] eKLR, reinforced this position by holding that:“…a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law, not through pleading and legal draftsman ship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court…" (Emphasis added).

29. It is therefore well established that a Court’s jurisdiction is derived from the Constitution, an Act of Parliament, or both.

30. Turning to the present matter, the two courts where the suits have been instituted are the Magistrates' Court and the Business Premises Rent Tribunal (hereinafter "the Tribunal"). It is imperative to distinguish their respective jurisdictions. The Magistrates' Court derives its jurisdiction from the Magistrates’ Courts Act, whereas the Tribunal exercises jurisdiction under the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301.

31. Notably, under Section 12 of the said Act, the Tribunal is empowered to determine whether a tenancy falls under the classification of controlled tenancy. From the evidence laid before me, the matter before the Tribunal has been instituted pursuant to Section 12 of the Act, a jurisdiction which the Magistrates’ Court does not possess. Consequently, the two suits cannot be said to have been filed before courts of concurrent jurisdiction, as the Tribunal’s jurisdiction is expressly limited to controlled tenancies, a fact pleaded by the Landlord.

32. Furthermore, a crucial test for the applicability of the doctrine of sub judice is whether a final determination in the previously instituted suit would operate as res judicata in the subsequent suit.

33. In this instance, the Applicant/Tenant instituted Nairobi CMCC No. E5461 of 2023, Hot Spot Coffee Lounge v Uchumi Supermarkets Limited, before the Chief Magistrate’s Court at Nairobi (Milimani Commercial Court) on 29th December 2023. From the pleadings, the cause of action stems from an alleged breach of contract, and the reliefs sought include:“A permanent injunction restraining the Defendant (read as Landlord), whether by themselves, their servants, agents, chief executive officer, subsidiaries, tenants, agents, licensees, third-party contractors, auctioneers, or anyone else acting at their behest, from forcefully removing, evicting, and/or relocating the Plaintiff (Tenant) and their business, or in any way interfering with the Plaintiff’s quiet possession of the suit premises."

34. Subsequently, the Tenant instituted Nairobi CMCC E1983 of 2024, Hot Spot Coffee Lounge v Uchumi Supermarkets Limited & Lawrence Ngao & 2 Others, wherein the cause of action is predicated on the tort of nuisance. The reliefs sought include:“A permanent injunction restraining the Defendant (Landlord) from constructing or continuing construction on any part of the suit premises or interfering in any way with the Tenant’s trade, commercial activities, and quiet occupation."

35. Conversely, in the present proceedings, the Landlord filed an Application and Reference dated 6th May 2024, wherein the primary complaint concerns the Tenant’s alleged non-compliance with a Notice to Terminate Tenancy dated 29th December 2023. The relief sought is a determination on whether there was non-compliance and, if so, appropriate orders.

36. In this regard, I find guidance in the decision of Judge O. A. Angote elucidated in Republic v Director of Criminal Investigations & Another; Nairobi House Limited (Ex parte); Koinange & Another (Interested Parties) (Environment and Land Judicial Review Case E013 of 2020) [2022] KEELC 15138 (KLR) as instructive. The Court held that:“It is apparent that notwithstanding the fact that the suit properties are the subject of both suits, the nature of the proceedings and reliefs sought therein are vastly different. The current application cannot be said to be sub judice ELC 434 of 2017. "

37. In the present case, an examination of the pleadings, nature of proceedings, and reliefs sought confirms that the matters before the Magistrates’ Court and the Tribunal are materially distinct. Accordingly, the Tenant’s plea of sub judice is unsustainable.

E. Orders 38. In light of the forgoing this court makes the following findings and determination:i.The Tenant’s Application dated 3rd February 2025 is hereby dismissed for lack of merit.ii.The Landlord’s Reference and Application dated 6th May 2024 shall proceed to full hearing.iii.Mention on 15th April 2025 for further directions.iv.Costs shall abide the outcome of the main suit.

HON P. KITUR -MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON P. KITUR THIS 28TH DAY OF MARCH 2025 IN THE ABSENCE OF THE PARTIES.