[2025] KEBPRT 211 (KLR)

Vugutsa v Obunyu (Tribunal Case E174 of 2024) [2025] KEBPRT 211 (KLR) (14 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 211 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E174 of 2024

N Wahome, Chair & Joyce Murigi, Member

February 14, 2025

Between

Celestine Vugutsa

Applicant

and

Mary Obunyu

Respondent

Ruling

1. The Landlady filed the Notice of Preliminary Objection dated 27. 11. 2024 in which she sought to have the Tenant’s Reference dated 24. 9.2024 struck out. The grounds on which these orders were sought are that;-i.The Application is incompetent, misconceived and otherwise an abuse of the court process of this Honourable Tribunal.ii.This Honourable Tribunal lacks the requisite jurisdiction to entertain the said Application as it offends Section 7 of the Civil Procedure Act.iii.The Orders sought cannot issue since the matter between the parties had been heard and determined in Kakamega BPRT Tribunal Case No. E121 of 2024 and is therefore a nullity.

2. In response to the notice of Preliminary Objection, the Tenant filed the Replying affidavit dated 11. 12. 2024 and the submissions dated 8. 01. 2025. On her part, the Landlady had filed the submissions dated 31. 12. 2024.

3. We have perused the parties’ pleadings and submissions and the only issue we have identified for determination is whether this suit is res-judicata and by extension, who should bear the costs of this Preliminary objection.

4. The Landlady/Applicant asserts that this matter was conclusively determined in BPRT Case No. E121 of 2024 Kakamega where the parties were the same as was the subject matter. It was her contention therefore that the present suit was in breach of the law and in particular Section 7 of the Civil Procedure Act.

5. In our view, this contention cannot hold. In case No. E121/2024 aforesaid, Hon. Gakuhi Chege and Hon. Joyce Osodo ruled as follows;-“The Landlord’s notice to terminate tenancy is marked as withdrawn with costs of Kshs. 4,000/= to be offset against rent. File ordered closed.”

6. It is apparent then that Case No. E121 of 2024 was withdrawn without having been heard and the present suit cannot therefore be in breach of Section 7 of the Civil Procedure Act. The Section provides that;-“No court shall try any suit 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 Titles, 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.”

7. In Case No. E121 of 2024, the matter was never heard nor decided by this court as the Landlady withdrew the defective termination notice which had informed the proceedings thereof. In any event, the present suit is anchored on the notice of termination dated 18. 7.2024 which was not in existence then and was therefore not an issue in the said suit.

8. We therefore determine that the notice of Preliminary Objection dated 27. 11. 2025 is without any merit and proceed to dismiss the same. The costs thereof are to abide the outcome of the Reference herein.

9. In the final analysis, the orders that commend to us are as follows;-a.That the notice of Preliminary objection dated 27. 11. 2024 is dismissed.b.That the Tenant shall settle all the rents in arrears in the next fourteen (14) days of the date hereof and continue paying rent as the same falls due and in default, levy of distress to issue at her cost.c.That this order shall be served upon the Directorate of Revenue Administration – Vihiga County Government.d.That the costs shall abide the outcome of the Reference herein.Those are the orders of the court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14THDAY OF FEBRUARY, 2025. HON. NDEGWA WAHOME, MBS, - PANEL CHAIRPERSON,BUSINESS PREMISES RENT TRIBUNAL.ANDHON. JOYCE MURIGI, - MEMBER,BUSINESS PREMISES RENT TRIBUNAL.