[2021] KEBPRT 93 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. E318 OF 2021

WORLD BUSINESS CENTRE LIMITED..................................LANDLORD/APPLICANT

VERSUS

CAROLINE GASHERI...................................................................TENANT/RESPONDENT

RULING

A. Parties and Representatives

1. The Applicant World Business Centre Limited is the Landlord and is the registered owner of all the property known as World Business Centre situated within the Nairobi Central Business District L.R No. 209/545 (hereinafter known as the ‘Landlord’)

2. The firm of Macharia Gakaria & Associates represent the Applicant/Landlord in this matter.

3. The Respondent Caroline Gasheri is the Tenant and rented space for the business in suit property World Business Centre situated within the Nairobi Central Business District L.R No. 209/545 (hereinafter known as the ‘Tenant’).

4. The firm of Swaka Advocates represent the Respondent/tenant in this matter. johnswaka@yahoo.com

B. The Dispute Background

5. On 17th November 2020 the Respondent/Tenant filed a plaint and a notice of motion application before the Milimani Commercial Courts praying that judgment be entered against the Applicant/Landlord to permanently restrain them from evicting, attaching, transferring, selling, conveying, charging, leasing or in any other way interfering with the Plaintiff’s quiet possession and enjoyment of the suit property. Further the Tenant was seeking special damages, specific performance, general damages and costs of the suit.

6. On 14th December 2020 the court in reference to the application gave orders restraining the Landlord/Applicant and the same were made mandatory on 25th January 2021.

7. The Landlord/Applicant has since moved this Tribunal by way of reference and a notice of motion application dated 29th June 2021 under section 12(4) of the Landlords and Tenants (Shops, Hotels and Catering) Establishments Act Cap 301. The Landlord was seeking amongst other orders that pending the hearing and determination of the reference that the Tribunal be pleased to give orders allowing the Landlord to levy distress for recovery of rent arrears of Kshs. 576,000/= and further that in default of satisfactory recovery that the Landlord be allowed to evict and reenter the premises.

C. Jurisdiction

8. The jurisdiction of this Tribunal is in dispute.

D. The Landlord’s Claim

9. The Landlord filed a reference and notice of motion application dated 29th June 2021which pleadings form the basis of this claim.

E. The Tenant’s Claim

10. The Tenant has filed a preliminary objection questioning the jurisdiction of this Honourable Tribunal dated 4th August 2020.

11. The Tenant/Respondent has filed submissions and the matter was fixed for ruling on 14th December 2021.

F. List of Issues for Determination

12. It is the contention of this Tribunal that the issues raised for determination are as follows;

Whether the Tribunal has jurisdiction to hear the matter on grounds of res-judicata?

G. Analysis and Findings

Whether the Tribunal has jurisdiction to hear the matter on ground of res-judicata?

13. It is clear that in exercising the powers conferred under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, this Honourable Court must restrict itself to the powers conferred to it under Section 12 of the said Act.

14. One of the powers conferred to the Tribunal as stated underSection 12(h)of theLandlord and Tenant (Shops, Hotels and Catering Establishments) Act CAP 301 Laws of Kenyais the power to permit the levy of distress for rent.

15. Based on this provision it would be within the mandate of the Tribunal to grant the orders sought by the Landlord/Applicant in the application dated 29th June 2021. However, the Tenant/Respondent has averred that the same would be going against the provisions of Section 6 of the Civil Procedure Act CAP 21 Laws of Kenyawhich 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.”

16. The Tenant/Respondent has provided proof before this Honourable Tribunal that they instituted a suit before the Milimani Commercial Courts and duly served the Landlord with the same. The Commercial Court proceed to give injunctive orders against the Landlord and the main suit is still pending before the Honourable Court.

17. The Tribunal notes that at the time the suit was filed the Tribunal was not sitting as it had been stopped from sitting by the High Court. All litigants had to move the Magistrates Commercial Court for relief in the circumstances and it appears that is what the Tenant rightfully did. However, the application by the Landlord comes at a time when the Tribunal is actively sitting and allowing the preliminary objection would be prejudicial as the Landlord would go to the Commercial Court only to be referred back here. Having the matter taken back to the Commercial court would serve as an injustice to the Landlord.

18. In addition, the matters before the Commercial Court were injunctive relief when the subject matter before me is rent arrears and reconciliation of accounts the two are not the same subject matter and I can proceed to determine the same.

19. The Tribunal is of the view that the matters raised in the application fall within the jurisdiction of this Honourable Tribunal and as such the same is the right forum to adjudicate on the same. The issues of rent arrears and distress for rent have not been canvassed at the Milimani Commercial Court and they clearly fall within the jurisdiction of this Tribunal.

H. Orders

a) The upshot is that the Tenant’s preliminary objection dated 4th August 2020 is hereby dismissed in the following terms;

b) The Landlord’s reference and application dated 29th June 2021 to be canvassed in full.

c) The Landlord to file necessary further affidavits, documents and witness statements and statement of accounts in 30 days.

d) Tenant to respond with necessary affidavits, witness statements, documents and statement of accounts in 30 days.

e) Matter to be scheduled for hearing and confirmation of compliance on 7th February 2022.

f) Status quo to be maintained and Tenant to pay rent when it falls due.

g) Costs shall be in the cause.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

RULING DATED, SIGNED AND DELIVERED VIRTUALLY BY HON A. MUMA THIS 14TH DAY OF DECEMBER, 2021 in the presence of Gakeria for the Landlord and Ms Kamau for Swakafor the Tenant.

HON A. MUMA

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL