Josephat Kabinga Wagocho v David Chege Mwangi [2021] KEBPRT 153 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. E505 OF 2021  (NAIROBI)

JOSEPHAT KABINGA WAGOCHO.......APPLICANT/LANDLORD

VERSUS

DAVID CHEGE MWANGI...........................RESPONDENT/TENANT

RULING

1.  Through a motion dated 18th September 2021, the Landlord is seeking for leave to levy distress for rent arrears amounting to Kshs.82,500/- together with interest at  14% as against the Tenant.

2.  He further seeks that the Tenant be prohibited and restrained from recovering any assets from the premises pending hearing of the application.  This prayer was allowed ex-parte together with prayer 4 of the application.

3.  Under prayer 3 of the application, the landlord is seeking to be permitted to evict the Tenant from the premises on plot no. C347B, Wanguru.

4.  The application is supported by the Landlord’s affidavit sworn on 13th September 2021 and the grounds on the face of the application.

5.  The said application is opposed through the Tenant’s replying affidavit sworn on 27th September 2021 in which it is disclosed that the Landlord obtained similar orders in Embu BPRT NO. E001 of 2021 against the Tenant vide a ruling delivered on 18th June 2021.

6.  The Tenant subsequently paid a sum of Kshs.37,000/- in August 2021 after opening business.  He denies having been served with any notice to terminate tenancy as the premises had remained closed due to Covid-19 pandemic.

7.  According to the Tenant, this application ought to have been canvassed in the previous matter and as such the landlord did not come to court with clean hands and the same should be dismissed with costs.

8.  I have looked at annexture ‘DC1’ attached to the replying affidavit and have noted that the title thereof clearly shows that the parties are the same as in this case.  The suit premises and the subject matter is the same.

9.  I have also noted that the matter was concluded in favour of the Landlord herein and it is not clear why he had to file the same application in this suit in clear abuse of court process.

10.  I find and hold that the issues raised herein are “Res Judicata” in terms of section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya and the decision in Kenya Commercial Bank Limited – vs- Benjoh Amalgamated Limited (2017) eKLR at  page  9-10/17where the Court  of  Appeal stated thus:-

“Expounding on the rationale of the doctrine, the Court of Appeal remarked as follows in the recent appeal: Independent Electrol & Boundaries Commission – vs- Maina Kiai & 3 others (2017) eKLR:

“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court.  It is designed as a pragmatic and common- sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to ligation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny.  The foundations of res judicata thus rests in the public interest for swift, sure and certain justice”.

11.  The Landlord might argue that the termination notice was not subject of the initial case and the answer to the same lies in the above decision wherein the Court of Appeal Cited its own decision in Mburu Kinyua – vs- Gachini Tutu (1978) KLR 69per Madan J as follows:-

“Where a given matter becomes the subject of litigation in and of adjudication by a Court of Competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except in special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest but which has not brought forward as part of the subject in contest but which has not brought forward only because they have from negligence inadvertence or even accident omitted part of their case.  The Plea of Res judicata applies except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which property belonged to the subject of litigation and which parties exercising reasonable diligence might have brought forward at the time”(emphasis added).

12.  By the time the Landlord filed his application in Embu BPRT No. E001 of 2021, he knew or ought to have known that proceeding with the matter before the coming into effect of the said notice to conclusion would have rendered its enforcement res judicata but took the gamble in so doing.

13.  I therefore proceed to find that the instant case is res judicata and is hereby dismissed with costs of Kshs.25,000/- to the Respondent.

It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 5TH DAY OF NOVEMBER 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

Miss Omumia holding brief for Olale for the Landlord/Applicant