Musa v Kahara & another [2025] KEBPRT 334 (KLR)

Musa v Kahara & another (Tribunal Case E040 of 2025) [2025] KEBPRT 334 (KLR) (27 June 2025) (Ruling)

Neutral citation: [2025] KEBPRT 334 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E040 of 2025

P May, Member

June 27, 2025

Between

Mohamed Ahmed Musa

Tenant

and

Peris Njoki Kahara

Landlord

and

Sanjomu Auctioneers

Auctioneer

Ruling

1. The application before me is the tenant’s application dated 5th March 2025 brought under certificate of urgency. The application sought orders of injunction against the Landlord. Upon receipt of the application, the respondents duly entered appearance and raised a preliminary objection dated 17th March 2025.

2. Both the PO and Application would be heard together.

3. The parties were directed to canvass the preliminary objection and Application by way of written submissions. There has been compliance by both parties.

Preliminary Objection 4. The notice of preliminary objection is premised on two grounds namely; that the application offends the provisions of section 7 of the Civil Procedure Act in that the applicant filed similar applications in Narok MCCC MISC E001 of 2024 and HCFA E002 of 2023 which were heard and determined and thus res judicata and stare decisis.

5. That the application is inept, incompetent, an abuse of the court process and incurably defective.

The Arguments 6. The parties have through their respective submissions made spirited attempts to convince the Tribunal to rule in favor of their respective positions. The parties herein do not dispute the existence of proceedings cited. The tenants have however placed a defence that they were forced to approach the Tribunal since the landlord had commenced the process of levying distress.

7. The Respondents in their submissions have maintained that issues between the parties were already dealt with in the above cited cases. Orders from those proceedings have been provided.

Analysis 8. The grounds of raising a preliminary objection were discussed at length in the celebrated case of Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd 1969 E.A. 696; where the court stated as follows:“...is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

9. I will therefore at this stage consider the legal issue(s) that go to the root of the whether there is a competent suit before this Tribunal and/or whether the Tribunal has/lacks jurisdiction to hear and determine such matter.

A. On the issue of Res- judicata 10. Section 7 of the Civil Procedure Act provides as hereunder:“No court shall try any suit or issue in which the matter directly or 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 title, in a court competent to try such subsequent suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

11. The orders that have been annexed to the respective affidavits confirm that the issues dealt with were in relation to the tenancy herein between the parties. Various orders were made and the auctioneer granted leave to levy distress for rent. Who am I to tamper with an already decided issue? I am not the appellate court.

12. The upshot therefore is that the Preliminary Objection succeeds and thus allowed.

Disposition1. The Preliminary Objection dated 17th March 2025 is allowed with costs to the landlord.2. The Application dated 5th March 2025 and complaint of even date are dismissed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JUNE, 2025. HON. PATRICIA MAY - MEMBER27. 6.2025Delivered in the presence of Kenga for the Applicant and in the absence of the Respondent