Wachira v Karaba & 2 others [2025] KEBPRT 260 (KLR)

Wachira v Karaba & 2 others (Tribunal Case E1019 of 2024) [2025] KEBPRT 260 (KLR) (2 May 2025) (Ruling)

Neutral citation: [2025] KEBPRT 260 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E1019 of 2024

J Osodo, Chair & Gakuhi Chege, Member

May 2, 2025

Between

Stephen Mwangi Wachira

Applicant

and

David Mwaura Karaba

1st Landlord

Mary Wakari Gituba

2nd Landlord

and

Jevans Consultant

Agent

Ruling

A. Dispute Background 1. The tenant/applicant moved this Tribunal vide a Notice of Motion under a certificate of urgency dated 24th January 2025 seeking for the following orders; -i.That the application be certified urgent.ii.That the tribunal interprets the ruling and orders issued on 28th November 2024iii.That the Tribunal grants the applicant an order to file a bill of costs for the loss caused by the 1st, 2nd and 3rd respondents.iv.That the Tribunal allows the applicant to be paying KES. 10,000 monthly rent to heal the wounds of injury from the respondent.

2. The application is supported by an affidavit of even date in which the tenant deposes that the tribunal’s ruling delivered on 28th November 2024, awarded him costs plus rent waiver of KES. 10,000. The tenant asserts that he has never defaulted on rent payments and has no arrears.

3. According to the tenant, during the hearing of the case, the landlord admitted that the agent acted unlawfully by locking the tenant's business premises for three weeks without the Tribunal’s approval. The landlord also accused the agent/3rd respondent of misconduct and requested the tribunal to hold him accountable.

4. The tenant further deposes that the notice to vacate issued to him was illegal and lacked the Tribunal’s official stamp. He maintains that the tribunal’s order directing him to pay monthly rent of KES. 10,000 is fair and just. He claims that the 1st ,2nd and 3rd respondents defied the tribunal's directive to reopen the premises. A copy of the ruling is annexed to his affidavit for ease of reference.

5. The application is opposed vide a replying affidavit of the 3rd respondent dated 11th February 2025 in which he deposes that the application is an abuse of court process and constitutes a misuse of judicial time, as it raises matters that have already been determined in the ruling delivered on 28th November 2024.

6. The 3rd respondent also asserts that the application is res judicata and amounts to an indirect appeal rather than a new matter. He highlights that the applicant was absent during the previous ruling despite prior notice, and that the application introduces new issues that should not be entertained, given that this court is functus officio.

7. He also notes that the ruling had granted the tenant costs of KES. 10,000 to be offset against rent, but the tenant expected cash, contrary to the ruling. Furthermore, the 3rd respondent accuses the tenant of failing to act on the ruling’s directives and of disobeying court orders, noting that the tenant continues to occupy the premises while not complying with the rent payment terms.

8. The tenant filed a response to the replying affidavit in which he deposes as follows; -i.That the tenant is a layman seeking interpretation of the ruling dated 28th November 2024. ii.That the 3rd respondent has been in contempt of court.iii.That the 3rd respondent ignored the orders of the court and sublet the tenant’s business frontage.

9. The 3rd respondent then filed a supplementary affidavit dated 20th March 2025 in which he deposes as follows; -i.That the suit premises has never been locked. Photos showing that the premises are open and operational are annexed.ii.That the tenant has done modifications at the suit premises without the consent of the landlord and that he intends to sublet the extension he has created from the modifications made at the suit premises.iii.That the orders from the previous ruling were issued and complied with.iv.That following the costs of KES. 10,000 awarded to the tenant, the 3rd respondent issued a letter to the tenant instructing the tenant to deduct KES. 10,000 from his February 2025 rent.v.That the 3rd respondent carried the burden of the costs because the 1st respondent is deceased and the 2nd respondent, who is one of the administrators, was scheming with the applicant until the family court orders were issued directing that an agent be appointed for collection of rent.

10. At a court hearing held on 12th February 2025, this tribunal directed that the application be canvassed by way of written submissions. Both parties complied with the 3rd respondent filing theirs dated 20th March 2025 and the tenant filing their undated submissions. We shall consider both submissions while dealing with the issues for determination.

B. Issues for determination 11. The following are the issues for determination; -a.Whether the tenant is entitled to the orders sought in the application dated 24th January 2025. b.Who shall bear the costs of the application?

Issue (a) Whether the tenant is entitled to the orders sought in the application dated 24th January 2025. 12. The tenant approached this tribunal seeking for orders that the tribunal interprets the ruling and orders issued on 28th November 2024 and that he be granted leave to file costs for the loss occasioned by the respondents. He also seeks that the court allows him to be paying monthly rent of KES. 10,000 to compensate the loss caused by the respondent.

13. The tenant in his written submissions states that all courts have power to issue orders and interpret the same. He also states that the respondents are in contempt of the court orders as the Tribunal had ordered that the business premises be opened and that all business conducted at the entrance of the suit premises be removed. He contends that the orders have not been complied with.

14. The respondent on the other hand states in his submissions that the ruling delivered on 28th November 2024 was clear and that the tenant was awarded costs of KES. 10,000 which was to be offset from the rent payable. That the tenant expects cash payment/cheque yet the ruling was clear and that this matter is res judicata.

15. The 3rd respondent further states that the tenant’s application seems like an appeal and that if the tenant was dissatisfied with the ruling, he would have appealed.

16. The Tribunal has carefully considered all the affidavits filed, the submissions, and the earlier ruling dated 28th November 2024. The said ruling issued the following orders; -“a)The tenant’s application dated 9th September 2024 is hereby allowed with the interim orders given on 17th September 2024 being confirmed.b)The reference dated 9th September 2024 is settled in terms.c)Costs of Kshs. 10,000 to the tenant/applicant to be offset against the rent account.”

17. On the prayer for interpretation of the ruling dated 28th November 2024, the Tribunal notes that its orders therein were clear. The tenant was awarded costs of KES. 10,000, to be offset from rent. The ruling did not direct cash payment or provide for a permanent reduction in rent.

18. As for the tenant's plea to continue paying KES. 10,000 monthly as rent due to alleged injury caused by the respondents, this Tribunal finds no legal basis or precedent to equate awarded costs or temporary relief with a permanent rent variation. Such relief was not granted in the earlier ruling, and no material change in circumstances has been demonstrated to warrant any fresh orders.

19. Regarding the tenant’s request for leave to file a bill of costs for losses incurred, the Tribunal finds this misplaced. The costs of KES. 10,000 awarded in the ruling were final and did not contemplate further quantification. The applicant’s attempt to re-litigate this point is res judicata, as it touches on issues already addressed and determined.

20. Section 7 of the Civil Procedure Act (Kenya) on Res Judicata states as follows; -“7. Res judicataNo 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.”

21. The Tribunal also finds merit in the 3rd respondent's argument that the application is an abuse of court process, as it essentially seeks to revisit a concluded matter without following the due process of appeal.

22. That said, the tenant's claim that he was seeking for clarification of the Tribunal’s ruling as a lay person is understandable, however, such clarification cannot result in variation of substantive orders unless it is done through a formal application for review or appeal, which is not the case herein.

23. On the issue of contempt, while the tenant accuses the 3rd respondent of failing to comply with the Tribunal’s earlier orders, the 3rd respondent has provided evidence, including photographs of the tenant’s business operating without hinderance at the suit premises, showing that efforts were made to adhere to the ruling.

24. We find that the tenant is not entitled to the orders sought in the application dated 24th January 2025 as the issues raised therein have either been determined in the earlier ruling or are improperly before the Tribunal.

Issue (b) Who shall bear the costs of the application? 25. Under Section 12(1)(k) of Cap. 301, Laws of Kenya, costs of any suit before this Tribunal are in its discretion but always follow the event unless for good reasons otherwise ordered. We shall award costs of the application to the 3rd respondent as the Tribunal finds that the tenant's application was unnecessary and amounted to re-litigation of the earlier dispute which had already been conclusively determined.

C. Orders 26. In conclusion, the following orders commend to us-a.The application dated 24th January 2025 is hereby dismissedb.Costs of KES. 10,000 is awarded to the 3rd respondent against the tenant.

It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY of MAY 2025. HON. JOYCE AKINYI OSODO - (PANEL CHAIRPERSON)HON GAKUHI CHEGE - (PANEL MEMBER)BUSINESS PREMISES RENT TRIBUNALIn the presence of:Kamau for the 3rd Respondent