Ishmael Mulama v Sophia Makokha [2022] KEBPRT 55 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 66  OF 2018 (KAKAMEGA)

ISHMAEL MULAMA...........................................................TENANT/APPLICANT

VERSUS

SOPHIA MAKOKHA..................................................LANDLORD/RESPONDENT

RULING

1.  By a motion dated 14th February 2020, the Applicant is seeking in material part that the Tribunal’s order issued on 11th October 2018 be reviewed, varied and/or set aside and the complaint herein be determined on the merits.

2.  The application is supported by an affidavit of the applicant of even date and the grounds on the face thereof.

3.  It is the  applicant’s case that the reference was initially set down for hearing on 10th October 2018 which fell on a public holiday and as such did not proceed.

4.  On 11th October 2018, the matter proceeded in the presence of the Respondent without prior notice to the applicant resulting into adverse orders against him.

5.  The applicant proceeded  to the subordinate court for injunctive orders but the application was dismissed for want of jurisdiction.  In the meantime the landlord is said to have locked the premises in enforcement of this Tribunal’s orders.

6.  The applicant seeks that the reference be heard on the merits in the interest of justice.

7.  On 22nd February 2021, the matter was dismissed for want of prosecution.  The applicant filed yet another application dated 15th June 2021 seeking to enjoin one Mwanaidi Omina Japongo as a second respondent for purposes of the application dated 14th February 2020.  He also sought for a declaration  that the intended 2nd Respondent’s possession of land parcel no. E. Wanga/Isongo/2646 is illegal and the said intended 2nd Respondent be evicted therefrom forthwith.

8.  Upon perusal of the application by Hon. A. Muma, Vice Chair, it was found that the same had been  filed in a dismissed case.

9.  Undeterred, the applicant filed yet another application dated 5th July 2021 seeking that the Tribunal order of 22nd February 2021 dismissing the suit for non-attendance be reviewed, varied and/or set aside and that the main suit be reinstated for hearing expeditiously.

10. The dismissal is said to have been done without due notice to the parties herein and the applicant only became aware upon filing the application dated 15th June 2021.

11. The applicant contends that he was keen on prosecuting this matter to its logical conclusion and the application had been filed without undue delay.

12. The said application is opposed through a replying affidavit of the Respondent sworn on 13th September 2021 wherein it is  deposed that the application was a waste of time and ought to be dismissed with costs.

13. The Respondent deposes that the applicant moved out of the suit premises.

14. The Respondent further deposes that the applicant filed Kakamega BPRT No. 66 of 2018 in which orders were made allowing the respondent to levy distress and recover Kshs.168,000/- in terms of annexure ‘SM1’.  Instead of complying with the said order, the applicant filed a fresh case vide Kakamega CMELC No. 991 of 2018 and obtained temporary injunctive orders on 18th October 2018 staying the orders  given in Kakamega BPRT No. 66 of 2018 pending hearing and determination of the notice of motion dated 17th October 2018.  The order is annexed and marked ‘SM2’.

15. A ruling was delivered by Hon. B. Ochieng, CM marked ‘SM3’ dismissing the application.  As a result, the applicant withdrew the said suit vide a notice dated 12th February 2020 marked ‘SM4’.

16. As such, the respondent contends that this Tribunal is being invited to sit on appeal against the said ruling which was not appealed against by the applicant and the application ought to be dismissed.

17. The application was ordered to be disposed of by way of written submissions and both parties complied.  I shall advert to the submissions while dealing with the issues set out below.

18. The issues for determination are:-

(a) Whether the applicant is entitled to the reliefs sought in the instant suit.

(b) Who is liable to pay costs of the suit?

19. There is no dispute that the applicant has been filing a multiplicity of suits and applications as follows:-

(i)   A notice of motion dated 14/2/2020 filed herein seeking review of the orders issued on 11th October 2018.

(ii)  The said application and the reference was on 11th October 2018 dealt with and the landlord allowed to levy distress and recover outstanding rent arrears of Kshs.168,000/-.

(iii)The landlord was also allowed to evict the tenant with assistance of OCS Shianda Police Station.

(iv)   The applicant thereafter filed Kakamega CMELC No. 991 of 2018 and obtained temporary injunctive orders on 18/10/2018.

(v)   In a subsequent ruling, the said application  was dismissed paving way for the distress.

(vi)  The applicant withdrew the said suit upon losing the said application.

(vii)  On 22nd February 2021, this Tribunal dismissed the instant proceedings for want of prosecution.

(viii) The applicant then filed another application on 15th June 2021 but the same was dismissed on 8th July 2021.

(ix)  The applicant yet again filed an application dated 5th July 2021 seeking that the order made on 22nd February 2021 dismissing the suit for non-attendance be reviewed, varied  and/or set aside and the main suit be reinstated.

(x) The said application is the subject matter of this ruling.

20. From the applicant’s submissions herein and the dismissed application dated 15th June 2021, it is clear that the suit premises is in possession of the intended 2nd Respondent who was running a hotel therein.  The take over of the suit premises was effected on 10th May 2021 according to paragraph 6 of the supporting affidavit.   The said application was dismissed on 8th July 2021.

21. This means that there was no longer a Landlord/tenant relationship between the parties herein.  As such I find that this Tribunal has no jurisdiction to entertain further proceedings on the subject matter.

22. In this regard, I am fortified by the decision in the case of Republic – vs- chairperson, Business Premises Rent Tribunal at Nairobi and Another ex-parte Suraj Housing & Properties Limited (2016) eKLR at paragraph 28 where it was held as follows:-

“28. It is clear that in exercising the powers conferred under the landlord and Tenant (Shops, Hotels and Catering establishments) Act, the Respondent Tribunal must restrict itself to the powers conferred under section 12 aforesaid.  This in my view is the sense in which the decision of Madam J (as he then was) in Pritam – vs- Ratilal and Another Nairobi HCCC No. 1499 of 1970 (1972) EA 560 ought to be understood.  In the said case, the learned Judge expressed himself as hereunder:-

“As stated in the landlord and Tenant (shops Hotels and Catering Establishments) Act itself, it is an act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto.  The scheme of this special legislation is to provide extra and special protection for tenants.  A special class of tenants is created.  Therefore the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply.  The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal, otherwise the tribunal will have no jurisdiction.  There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply, outside it, the Tribunal has no jurisdiction”.  (underlining mine)

23. In the instant case, this Tribunal authorized the eviction  of the tenant through an order given on 11th October 2018 by the then chairman, Hon. Mbichi Mboroki.  The said order has never been varied or set aside and the Respondent was perfectly entitled to surrender the premises to a third party in absence of a reinstatement order of the applicant.

24. Secondly, the applicant filed suit in the subordinate court and lost at the interlocutory stage thereby withdrawing the suit.  As such, he cannot come to this Tribunal to litigate over the same issues dealt with by the said court as the matter is res judicata.

25. Finally, the applicant is seeking for review of the orders of 22nd February 2021.  The said orders were made in respect of the application dated 14th February 2020 which was seeking inter -alia for review of the orders of 11th October 2018 which dismissed the reference.

26. Under order 45 Rule 6 of the Civil Procedure Rules, 2010, it is stipulated as follows:-

“No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained”.

27. Consequently, this Tribunal has no jurisdiction to review the dismissal orders made herein or to reinstate the complaint.

28. Flowing from the foregoing analysis, the final orders that commend to me are:-

(i)  The application dated 5th July 2021 is hereby dismissed for want of jurisdiction.

(ii)  The Respondent is granted Kshs.30,000/- towards costs against the applicant.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF FEBRUARY 2022.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Ruling delivered in the absence of the parties.