Oyugi v Kimani [2025] KEBPRT 233 (KLR)

Oyugi v Kimani (Tribunal Case 1414 of 2024) [2025] KEBPRT 233 (KLR) (8 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 233 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 1414 of 2024

CN Mugambi, Chair

April 8, 2025

Between

Bernard Oyugi

Tenant

and

Kenneth Kaunda Kimani

Landlord

Ruling

1. The Tenant’s Application dated 23. 12. 2024 seeks orders that the Respondent be restrained from in any manner interfering with the Applicant’s tenancy in the suit property located at Embakasi. The Tenant has also sought the assistance of the OCS, Embakasi Police Station in the enforcement of the orders sought.

The Tenant’s depositions 2. The Tenant has deponed in his supporting affidavit that he has been a Tenant of the Respondent in the suit premises faithfully paying rent of Kshs. 40,000/= per month.

3. The Tenant has deponed that the Landlord on 16. 12. 2024 issued him with a verbal notice to vacate the premises by 01. 01. 2024 which demand the Tenant contends is motivated by the Landlord’s desire to increase rent without adhering to the provisions of the Act, presumably Cap 301 of the Laws of Kenya.

4. In his further affidavit, the Tenant admits that the Landlord has orders but continuous to accept rent from the Tenant.

5. The Tenant further depones that he has over 670 students in the suit premises who are already registered candidates and it is too late in the day to change the examination centers with the Kenya National Examination Council.

6. The Tenant prays that he be given until November 2025 in order to relocate the school and the students.

The Landlord’s depositions 7. The Replying affidavit sworn by the Respondent may be summarized as follows;-a.That on 15. 8.2018, the Tenant was ordered by the Tribunal to hand over vacant possession of the suit premises.b.That in BPRT Case NO. 517 of 2017, the Landlord was allowed to serve a termination notice upon the Tenant which he did and subsequently filed BPRT Case No. E431 OF 2022. c.In BPRT Case No. E431 of 2022, the Tenant was ordered to vacate and render vacant possession of the premises within sixty (60) days but failed to do so.d.That the Respondent had also filed suit No. 132 of 2020 seeking vacant possession of the premises and upon the successful completion of the case, the Tenant applied for leave to file a Reference out of time which Application was dismissed. The Tenant’s Appeal against the orders issued by the Tribunal on 28. 3.2022 was also dismissed by the Environment & Land court.e.That the Tenant is an illegal occupant of the suit premises and further the Tribunal lacks jurisdiction to determine this matter, the same having been determined by a superior court.f.That further, the Application by the Tenant is res-judicata and the numerous Applications by the Tenant are denying the Landlord the enjoyment of his rights as the proprietor of the suit premises.

Analysis and determination 8. The only issue that arises for determination is whether the Tenant is entitled to the prayers sought in his Application.

9. In BPRT Case No. 575 of 2017, the court made the following final orders;-a.That the monthly rent payable is Kshs. 15,000/=.b.The Tenant has paid rent up to May 2019. c.The Landlord is at liberty to serve the Tenant with a termination notice.d.The Tribunal file is now closed.e.Each party shall bear its own costs.

10. The Landlord duly served a notice to terminate tenancy and filed BPRT Case No. E431 of 2022 to enforce the said notice. In determining the case, the Tribunal made the following orders;a.That the Tenant issue vacant possession to the Landlord within sixty (60) days from the date hereof failure to which the Landlord shall be at liberty to break in and take vacant possession.b.OCS, Embakasi Police Station to ensure compliance.c.The Landlord shall have costs”

11. In another suit filed by the Landlord to obtain vacant possession of the suit premises (BPRT No. 132 of 2020) the Tenant filed an Application seeking to file a Reference out of time to challenge the notice to terminate tenancy dated 28. 05. 20219. The Tenant’s Application was dismissed by the Tribunal on 28. 3.2022 and the Appeal against the said orders was also dismissed by the Environment & Land Court in Nairobi ELC Appeal Case No. E035 of 2022.

12. The Tenant has not denied the existence and validity of all the court orders referred to above. This matter has a long history in the courts starting from the year 2017 when the same was filed. In all the instances in the litigation between the parties, the Tenant has lost all attempts to remain in the suit premises. The Tenant’s Appeal having been finally determined by the Environment & Land Court, litigation over the issues legally and literally came to an end.

13. The Tenant’s instant suit is brought in a manner to challenge all previous proceedings including the decision of the Environment & Land court. This is improper as it flies on the face of past decisions even final ones on Appeal and the instant suit is neither an Appeal nor an Application for review against any of the past orders. To this extent, I do agree with the Landlord that this matter is res-judicata.

14. I am also of the view that the Application and the Reference by the Tenant in this matter amounts to a clear abuse of the court process and is merely meant to frustrate the Landlord. The Tenant is clearly using the Tribunal in an attempt to achieve the said end and this the Tribunal must resist.

15. I have seen that the Tenant has deponed that he has candidates who are likely to be disrupted if the Application is not allowed. The Judgment of the Environment & Land Court on Appeal was delivered on 20. 12. 2024, it dismissed the Tenant’s Appeal and from then onwards, the Tenant should have known better than to register the suit premises as an examination center. Even if I were to sympathize with the “alleged” plight of the said candidates, the Tribunal is already functus officio in this matter and I have no jurisdiction to issue any further orders or re-open any litigation between the parties over the same subject matter.

16. Consequently, and in view of the above findings, I do not find any merits in the Tenant’s Application and the same is dismissed. The court having already found that the instant suit is res-judicata and an abuse of the court process, the same is also struck out.

17. The Tenant shall bear the costs of the Complaint and the Application filed therewith.

18. This file is ordered closed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF APRIL 2025. HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Kamau for the Applicant and Mr. Kamwaro for the Respondent