Mwangi v Omeri; Kusimba (Interested Party) [2025] KEBPRT 286 (KLR)

Mwangi v Omeri; Kusimba (Interested Party) (Tribunal Case E154 of 2023) [2025] KEBPRT 286 (KLR) (Admiralty) (16 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 286 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Admiralty

Tribunal Case E154 of 2023

Gakuhi Chege, Chair & J Osodo, Member

May 16, 2025

Between

John Mwangi

Applicant

and

Daniel Elijah Omeri

Respondent

and

Heldah Kusimba

Interested Party

Ruling

1. The interested party moved this Tribunal through a motion dated 10th January 2025 seeking for a declaration that the matter herein is res judicata in the light of the decision in Kakamega BPRT No. E099 OF 2023 through which the tenant was ordered to vacate the suit premises within seven (7) days from 17th August 2023 failing which the interested party was authorized to evict him with the help of OCS Busia (K) Police Station. The interested party was also awarded costs of Kshs 20,000/=.

2. The interested party therefore pleads that this Tribunal lacks jurisdiction to entertain the reference and the application dated 2nd October 2023 as there exists no landlord/tenant relationship since the tenant was evicted on 29th September 2023 following orders of this Tribunal given on 17th August 2023.

3. The interested party also seeks that the tenant be declared, a vexatious litigant and be barred from initiating unnecessary suits against her and her family members in regard to the tenancy.

4. She finally seeks for compensation by way of damages under Section 13 of Cap. 301 for loss suffered including emotional torture, harassment, loss of business and arrest due to misrepresentation and concealment of material facts by the Applicant in this case.

5. The application is predicated upon the grounds on the face thereof and her affidavit sworn on 10th January 2025. It is the interested party’s case that she was never served with court process. She only came to learn about the case when orders for arrest were issued and executed against her.

6. She deposes that the instant case is res judicata since the issue of the Applicant’s tenancy was determined in Kakamega BPRT NO. E099 OF 2023 wherein eviction orders were issued and executed against him. The said eviction order is attached as annexure “HK2”.

7. It is therefore contended that this Tribunal has no jurisdiction to hear and determine this case as there is no longer any landlord/tenant relationship since the tenant was evicted on 29th September 2023.

8. The application is opposed through the Applicant’s grounds of opposition dated 15th January 2025 in which he contends that the same is without merit, an afterthought and an abuse of court process. The application is attacked as being frivolous and an abuse of court process.

9. The 1st Respondent also filed an affidavit in which he deposes that he is the landlord to the Applicant who has been paying rent to him in respect of a property known as L.R NO. South Teso/Angoromo/3XX6 on which the shop is situate. He attaches a certificate of confirmation of grant as annexure DEO 1.

10. The interested party filed a further affidavit sworn on 21st March 2025 in which she deposes that the suit property is situate on L.R No. Teso/Angoromo/5XX0 in the CBD whereas the alleged property of the 1st Respondent is in the countryside and is yet to devolve to the respective beneficiaries listed in the grant annexed by the 1st Respondent.

11. The matter was directed to be canvassed by way of written submissions but only the Applicant complied. We have read the submissions and taken the same into consideration in arriving at our decision herein.

B: Issues For Detrmination. 12. Based on the foregoing pleadings, the following issues arise for determination: -a.Whether this matter is res judicata.b.Whether there exists a landlord/tenant relationship between the parties herein capable of protection by this Tribunal.c.Whether the interested party is entitled to the reliefs sought in the application dated 25th February 2025. d.Who is liable to pay costs of the application?

13. We intend to deal with the first two issues together and the other two issues separately.

14. The interested party through her motion dated 10th January 2025 is seeking for a declaration that the matter herein is res judicata in the light of the decision in Kakamega BPRT NO. E099 OF 2023 through which the tenant was ordered to vacate from the suit premises within seven (7) days from 17th August 2023 failing which the interested party was authorized to evict him with the help of OCS Busia (K) Police Station. The interested party was also awarded costs of Kshs 20,000/=.

15. The interested party therefore pleads that this Tribunal lacked jurisdiction to entertain the reference and the application dated 2nd October 2023 as there was no landlord/tenant relationship in existence since the tenant had been evicted on 29th September 2023 following orders of this Tribunal given in the said case on 17th August 2023.

16. We have gone through the submissions of the interested party in which she cites Superior Courts decisions in the cases of Kamunye & Others Vs Pioneer General Assurance Society Limited (1971) E.A 263, Invesco Assurance Company Limited & 2 Others Vs Auctioneers Licensingboard & Another ;kinyanjui Njuguna & Company Advocates & Another (interested Parties) (2020) eKLR and Owners Of Motor Vessel Lilian S Vs Caltex Oil (kenya) Ltd (1989) eKLR and the provisions of Section 7 of the Civil Procedure Act, Cap 21, Laws of Kenya on the doctrine of res judicata and jurisdiction and we entirely agree with the same.

17. The said provision of the law states as follows: -“7. Res judicata“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and 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 or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

18. We have also perused the court file in respect of Kakamega BPRT NO. E099 of 2023 in which Hon P. May ordered the tenant to vacate from the suit premises within seven (7) days failure to which the landlord was allowed to evict him with the assistance of the OCS Busia (K) Police Station.

19. Although the said orders were attached to the interested party’s application herein as annexure “HK2”, the Applicant did not file any affidavit to controvert their existence and the deposition that he was evicted pursuant thereto.

20. The said orders have not been set aside nor varied by this Tribunal and as such, we agree, with the interested party’s submission that the instant case is res judicata and therefore a candidate for dismissal. All the interim orders issued in favour of the Applicant ought to be discharged and/or set aside.

21. Having been evicted from the suit premises, the landlord/tenant relationship was terminated and this Tribunal’s jurisdiction was consequently ousted.

22. As to whether the interested party is entitled to the other prayers in the application, we find that we cannot declare the Applicant a vexatious litigant neither can we award her compensation under Section 13 of Cap. 301 in absence of a hearing of the two prayers and a determination on merit. Having held that this Tribunal had no jurisdiction to entertain the instant suit, we cannot on the other hand grant the other prayers sought by the Applicant.

23. As regards costs, the same are in this Tribunal’s discretion under Section 12(1)(k) of Cap. 301, but always follow the event unless for good reasons otherwise ordered. We shall award the costs of the application to the interested party being the successful party.

24. In conclusion, the following orders commend to us: -a.The interested party’s application dated 10th January 2025 is partially allowed and the instant suit is hereby declared res judicata in view of the eviction orders made in Kakamega BPRT Case No. E099 OF 2023 against the tenant/applicant.b.The instant suit is hereby struck out and all the orders given in favour of the Applicant are hereby set aside/discharged.c.The costs of the application assessed at Kshs 25,000/= are awarded to the interested party.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF MAY 2025. HON GAKUHI CHEGEPANEL CHAIRPERSONBUSINESS PREMISES RENT TRIBUNALHON. JOYCE A. OSODOPANEL MEMBERIn the presence of: -Applicant in personNo appearance by the other parties