Mamboleo v Kang’ethe [2025] KEBPRT 263 (KLR)

Mamboleo v Kang’ethe (Tribunal Case E129 of 2025) [2025] KEBPRT 263 (KLR) (4 February 2025) (Ruling)

Neutral citation: [2025] KEBPRT 263 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E129 of 2025

A Muma, Member

February 4, 2025

Between

Antony Ogato Mamboleo

Tenant

and

Paul Mbugua Kang’Ethe

Respondent

Ruling

A. Parties and their Representatives 1. The Tenant, Antony Ogato Mamboleo is the tenant of a portion of space on land parcel Nairobi/Thiboto/TownshiP/25, situated in Nairobi City County (the “suit premises”).

2. The firm of Prow & Co. Advocates represents the Tenant in this matter.

3. The Respondent, Paul Mbugua Kang’ethe is the registered proprietors of the suit premises (the “Landlord”).

4. The firm of L.N Muchira & Co. Advocates represents the Landlord in this matter.

B. Background of the Dispute 5. Through a Plaint dated 3rd February, 2025, the Tenant herein moved the Tribunal seeking several prayers, inter alia, permanent injunction restraining the Landlord from evicting, harassing or interfering with his tenancy, permanent injunction restraining the Landlord from braking into the suit premises, damaging property or disposing of the property belonging to the Tenant, and an order compelling the Landlord to never unilaterally disconnect electricity and internet utilities on the suit premises.

6. Accompanying the Plaint was a Notice of Motion under Certificate of Emergency of even date seeking several orders, inter alia, temporary injunction restraining the Landlord restraining the Landlord from evicting, harassing or interfering with his tenancy pending hearing and determination of the application and the suit, a temporary order restraining the Landlord from disconnecting electricity, water and internet utilities on the suit premises pending hearing and determination of the Application and the suit.

7. The matter was slated for hearing of the Application on 4th February, 2025. Upon ex-parte hearing the Application, the Tribunal granted the temporary injunctive order sought in the Application and ordered that the same be served upon the Landlord.

8. Subject of the instant Ruling therefore is the Plaint dated 3rd February, 2025.

C. Tenant’s Case 9. In his Plaint dated 3rd February, 2025 and his witness statement to the Plaint of even date, the Tenant averred that he assumed the tenancy of the suit premises from the year 2015 from a previous tenant, one James Mamboleo.

10. He averred that he has been living in the suit property since 2015 with the knowledge of the Landlord and has been paying rent on time. He added that that he’s been acting as a caretaker in the suit property.

11. The Tenant further avers that he has enjoyed peaceful occupation of the suit property until strange people started issuing notices of evicting James Mamboleo, which mostly were done verbally. He avers that the Landlord is attempting to unlawfully evict him from the suit property through a proxy.

D. Landlord’s Case 12. In response to the Tenant’s case, the Landlord filed his Replying Affidavit sworn on 20th February, 2025. He averred that the Tenant’s case is riddled with misinformation and disguises. That the Tenant has been on the suit property since the year 2000.

13. He averred that on 9th November, 2021, he issued a notice to the Tenant to vacate the suit premises to allow room for renovation. The Tenant objected to the notice vide Tribunal Case no E740 of 2021. He averred that the Tenant failed to attend the hearing of the case despite being aware of the hearing dates.

14. It was his case that consequently the Tribunal entered an ex-parte judgment with orders that the Tenant to vacate the suit premises and/or eviction orders do issue. The Tribunal further ordered that the tenancy be terminated effective 9th November, 2021 and the Landlord awarded costs of KShs.25,000. 00.

15. He averred that as a result of the judgment of the Tribunal, the Tenant filed an appeal before the Environment and Land Court ELC Appeal no 038 of 2023: James Mamboleo v Paul Mbugua Kangethe seeking to set aside the said orders by the Tribunal which appeal was dismissed. He added that as a result, he applied for eviction orders and instructed Icon Auctioneers to proceed with the eviction as per the Tribunal orders delivered on 2nd December, 2022.

16. The Landlord averred that has changed his name from James Mamboleo to Antony Ogato Mamboleo and brought the instant suit to prevent execution of the orders of the previous suit.

17. The issues arising herein were canvassed by the party through written submissions.

E. Jurisdiction 18. The Jurisdiction of this Honourable Tribunal is not contested and therefore is not in dispute.

F. Issues For Determination 19. I have carefully perused the Pleadings and the respective submissions presented before this Honourable Tribunal by the parties. It is therefore my respectful finding that the issues for determination are:i.Whether the instant suit is res judicata; andii.Whether the Tenant is entitled to the orders sought.

G. Analysis and Findings a. Whether the Instant Suit is Res Judicata. 20. It is undisputed that there exists a tenancy relationship between the Landlord and the Tenant herein. The major issue is whether the termination notice dated 9th November, 2021 was issued to the Tenant herein, which he challenged to the Environment and Land Court rendering the instant suit res judicata.

21. In the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus;“………54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.”

22. This Tribunal has to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle as was judicially remarked in ET v Attorney-General & another (2012) eKLR, thus:“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction.”

23. In the case of Omondi v National Bank of Kenya Limited and others, (2001) EA 177 the court held that:“Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit. If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata.”

24. This test for res judicata is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads as follows:“(i)the matter in issue is identical in both suits;(ii)the parties in the suit are the same;(iii)sameness of the title/claim;(iv)concurrence of jurisdiction; and(v)finality of the previous decision. “

25. I now turn to consider the tests above in turns as below:

i. Is the Instant Suit Identical to the BPRT Case No. E740 of 2021? 26. The instant suit seeks, inter alia, permanent injunction restraining the Landlord from evicting, harassing or interfering with his tenancy, permanent injunction restraining the Landlord from braking into the suit premises, damaging property or disposing of the property belonging to the Tenant, and an order compelling the Landlord to never unilaterally disconnect electricity and internet a portion of space on land parcel Nairobi/Thiboto/Township/25, situated in Nairobi City County. On the ground that the Landlord is seeking to evict him from the said property.

27. In the BPRT Case no E740 of 2021 as evidenced in the judgement delivered on 2nd November, 2022 the Tenant, one James Mamboleo, sought to challenge the termination notice dated 9th November, 2021 seeking to terminate his tenancy over Nairobi/thiboto/Township/25, situated in Nairobi City County. The suit was heard and this Tribunal vide a judgment delivered on 2nd November, 2022 ordered the Tenant to vacate and in default to be evicted from LR no Nairobi/Thiboto/Township/25.

28. In light of the above set of facts, it is evident that LR no Nairobi/Thiboto/Township/25, the suit property herein, was the same suit property before the Tribunal in BPRT Case no E740 of 2021. Further the reliefs sought before this Tribunal was determined in the said case. I therefore find that the present suit is similar and identical to BPRT Case no E740 of 2021 for the reason that the matter in issue being LR no Nairobi/Thiboto/Township/25 are identical.

ii. Were the Parties in the Present Suit same as the BPRT Case No. E740 of 2021 29. The tenant in the present case is Antony Ogato Mamboleo. He submitted that he has ID no 31400584 and denied being James Mamboleo who was the tenant in BPRT Case no E740 of 2021. He also averred that he has been the tenant in the suit property since 2015. The impugned judgment was delivered in 2nd November, 2022 in respect of the same property the Tenant was occupying.

30. The Tenant in the suit property instituted a suit before the Tribunal to challenge the termination notice dated 9th November, 2021 given by the Landlord, one Paul Mbugua Kangethe in respect of the same property the Tenant in the present suit was occupying. It is not disputed that the Tenant herein was in occupation of the property when the said judgement was delivered.

31. It is a common that the Landlord herein was the Landlord in BPRT Case no E740 of 2021.

32. This Tribunal can therefore not find otherwise that the parties in the present suit and BPRT Case no E740 of 2021 are the same even though the Landlord herein used the name James Mamboleo to challenge the validity of the Landlord’s notice of termination.

iii. Is the Instant Jurisdiction the same as BPRT Case No. E740 of 2021? 33. The BPRT case no E740 of 2021 was instituted before the Business Premises Rent Tribunal at Nairobi, the same as the instant suit.

34. I therefore find that the instant suit was is before the very Tribunal that delivered the judgement on 2nd November, 2022.

iv. Finality of the Previous Decision 35. The judgment in BPRT Case no E740 of 2021 was appealed by the Tenant herein vide ELC Appeal no E038 of 2023. Therein, the Tenant filed an application for stay of execution of the judgment of the Tribunal which application was dismissed for want of merits vide a Ruling delivered on 21st September, 2023.

36. I therefore hold the decision of the BPRT Case no E740 of 2021 concerning the issues raised herein is final.

37. Consequently, it is the finding of this Tribunal that the instant suit by the Tenant is res judicata and only amounts to abuse of the precious judicial time as the same had already been fully heard and determined in BPRT Case no E740 of 2021.

b. Whether the Tenant is entitled to the orders sought. 38. Having held that the instant suit is res judicata, the Tenant is consequently not entitled to the orders sought in the Application and Plaint dated 3rd February, 2025.

Orders 39. The consequence of the foregoing finding is that the Plaint and Notice of Motion dated 3rd February, 2025 is dismissed with costs to the Landlord assessed at KShs. 20,000. 00

HON A. MUMA - MEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, DELIVERED AND SIGNED AT NAIROBI ON THIS 4TH DAY OF FEBRUARY 2025 IN THE PRESENCE OF ABUGA HOLDING BRIEF FOR MUCHIRA FOR THE LANDLORD AND NA FOR THE LANDLORD.HON A. MUMA - MEMBERBUSINESS PREMISES RENT TRIBUNAL