Wonder Feeds Limited v Ali & 3 others (Tribunal Case E082 of 2024) [2024] KEBPRT 1447 (KLR) (Civ) (1 October 2024) (Ruling)
Neutral citation:
[2024] KEBPRT 1447 (KLR)
Republic of Kenya
Tribunal Case E082 of 2024
Gakuhi Chege, Chair & J Osodo, Member
October 1, 2024
Between
Wonder Feeds Limited
Tenant
and
Tahfa Ali
1st Respondent
Muna War Ali
2nd Respondent
Munir Ali
3rd Respondent
Direct “O” Auctioneers
4th Respondent
Ruling
A. Dispute Background
1.The tenant/applicant moved this Tribunal vide a Reference dated 25th June 2024 under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, Laws of Kenya with a complaint that the landlords/respondents had instructed the 4th respondent to evict and distress for rent against it without issuance of the prescribed notice contemplated under Section 4(2) and 5 of the said statute.
2.The tenant simultaneously filed a motion of even date seeking for injunctive orders against the respondents from illegally and arbitrarily proclaiming, attaching and selling its motor vehicles and/or tools of trade in the course of distress for rent over property known as L.R No. Nakuru Municipality Block 4/103. It is also seeking for an order for the release of the attached motor vehicles registration No. KCH 933Z Mitsubishi Fuso& KCC 699M, Mitsubishi Fusoand for an order to quash the proclamation notice dated 15th May 2024 issued by the 4th respondent.
3.The application is supported by the affidavit of Habib -Ur-rehmanParkarsworn on 25th June 2024 and the grounds on the face of the application. It is pleaded that the Applicant’s acquisition of the suit property through a public auction was nullified by the Superior Court in Nakuru HCCC No. 82 of 2006. As a result, the relationship between the Applicant and the Respondents was converted into a landlord/tenant relationship with the Applicant being ordered to be paying rent at the rate of Kshs 50,000/= per month with effect from 1st December 2005 until payment in full.
4.The Applicant contends that the 1st to 3rd respondents instructed the 4th respondent to levy distress for rent without issuing the prescribed notice under Section 4(2), (4) & (5) of Cap. 30 following which two of its lorries were attached and advertised for sale. It is therefore sought to quash the proclamation notice and order for the release of the two lorries.
5.An interim order of injunction was given ex-parte which inter-alia restrained sale of the attached motor vehicles and/or tools of trade pending hearing inter-partes on 4th July 2024.
6.The application is opposed through a replying affidavit sworn on 12th July 2024 by the 3rd respondent in which it is deposed in material part that the Applicant was a tenant of the respondents paying a monthly rent of Kshs 50,000/= prior to the fraudulent sale of the suit property which was nullified by the Superior Court in the aforesaid case. The judgement and decree are attached to the replying affidavit as annexure MAO I.
7.The Applicant was granted a conditional stay of the judgement by the Superior Court vide a ruling marked as annexure MOA II (a) delivered on 14th March 2024 in which it was directed to deposit Kshs 35 million in a joint interest earning account within 45 days. The Applicant failed to meet the condition despite being issued with a notice dated 2nd May 2024 to pay the outstanding rent.
8.Subsequently, the 4th respondent was instructed to levy distress and sell the Applicant’s properties which was successfully executed in terms of the annexures marked MAO V-VIII.
9.It is therefore denied that the respondents have any intention to evict the Applicant despite being in arrears of Kshs 5,406,724/= as at July 2024. However, they admit having given fresh instructions to the 4th respondent to levy further distress for the outstanding rent arrears since the Applicant is still in occupation of the suit premises.
10.According to the respondents, this Tribunal has no jurisdiction to entertain this case as it is not only res judicata but also sub-judice since the Applicant has a pending application before the Court of Appeal vide COA Civil Appeal No. E054 OF 2024 as can be discerned from annexure marked MAO XI. As such, this Tribunal is being called upon to sit on appeal over the decisions of the High Court and the Court of Appeal.
11.The respondents also filed a preliminary objection dated 3rd July 2024 in which they have raised the following issues;i.That the reference herein is a nullity as the same amounts to an abuse of the due process of law.ii.That this honourable court lacks jurisdiction to entertain this matter for it cannot sit as an appellate court.iii.That the High Court made a finding on the matter in a ruling delivered in the High Court Civil Suit No. 82 of 2006 in terms of the Judgment, decree, ruling and Order attached to the notice of preliminary objection.iv.That the entire suit is void ab initio, non-starter, bad in law an abuse of the due process and should be struck out.v.That the honourable court cannot entertain a matter that is pending in the court of appeal vide Court of Appeal Mis App No. 054 of 2024 in which directions have already been given (Directions attached).vi.That the reference violates the express provisions of Section 12, Cap 301.
12.The preliminary objection was directed to be disposed of by way of written submissions and both parties complied. We shall consider the submissions together with the issues for determination.
B. Issues for determination
13.The following issues arise for determination; -a.Whether this Tribunal has jurisdiction to hear and determine this suit under the doctrines of Res Judicata and Res sub-judice.b.Who is liable to pay costs.
Issue a) Whether this Tribunal has jurisdiction to hear and determine this suit under the doctrines of Res Judicata and Res sub-judice.
14.In the case of John Florence Maritime Services Limited & another Vs Cabinet secretary, Transport and Infrastructure & 3 others (2021) eKLR, the Supreme Court of Kenya ably discussed the doctrine of Res Judicata at paragraph 58 as follows;
15.The tenant/applicant moved this Tribunal vide a Reference dated 25th June 2024 under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, Laws of Kenya with a complaint that the landlords/respondents had instructed the 4th respondent to evict and distress for rent without issuance of the prescribed notice contemplated under Section 4(2) and 5 of the said statute.
16.The tenant simultaneously filed a motion of even date seeking for injunctive orders against the landlords from illegally and arbitrarily proclaiming, attaching and selling its motor vehicles and/or tools of trade in the course of distress for rent over property known as L.R No. Nakuru Municipality Block4/103. It is also seeking for an order for release of the attached motor vehicles registration No. KCH 933Z Mitsubishi Fuso& KCC 699M Mitsubishi Fuso and for an order to quash the proclamation notice dated 15th May 2024 issued by the 4th respondent.
17.The application is supported by the affidavit of Habib -Ur-rehmanParkarsworn on 25th June 2024 and the grounds on the face of the application wherein it is pleaded that the Applicant’s acquisition of the suit property through a public auction was nullified by the Superior Court in Nakuru HCCC No. 82 of 2006. As a result, the relationship between the Applicant and the Respondents was converted into a landlord/tenant relationship with the Applicant being ordered to be paying rent at the rate of Kshs 50,000/=per month with effect from 1st December 2005 until payment in full.
18.The Applicant contends that the 1st to 3rd respondents instructed the 4th respondent to levy distress for rent without issuing the prescribed notice under Section 4(2), (4) & (5) of Cap. 301 following which two of its lorries were attached and advertised for sale. It is therefore sought to quash the proclamation notice and order for release of the two lorries.
19.An interim order of injunction was given ex-parte inter-alia restraining sale of the attached motor vehicles and/or tools of trade pending hearing inter-partes on 4th July 2024.
20.The application is opposed through a replying affidavit sworn on 12th July 2024 by the 3rd respondent in which it is deposed in material part that the Applicant was a tenant of the respondents paying a monthly rent of Kshs 50,000/= prior to the fraudulent sale of the suit property which was nullified by the Superior Court in the aforesaid case. The judgement and decree are attached to the replying affidavit as annexure MAO I.
21.The Applicant was granted a conditional stay of the judgement by the Superior Court vide a ruling marked as annexure MOA II (a) delivered on 14th March 2024 in which it was directed to deposit Kshs 35 million in a joint interest earning account within 45 days. The Applicant failed to meet the condition despite being issued with a notice dated 2nd May 2024 to pay the outstanding rent.
22.Subsequently, the 4th respondent was instructed to levy distress and sell the Applicant’s properties which was successfully executed in terms of annexures marked MAO V-VIII.
23.It is therefore denied that the respondents have any intention to evict the Applicant despite being in arrears of Kshs 5,406,724/= as at July 2024. However, they admit having given fresh instructions to the 4th respondent to levy further distress for the outstanding rent arrears since the Applicant is still in occupation of the suit premises.
24.According to the respondents, this Tribunal has no jurisdiction to entertain this case as it is not only res judicata but also sub-judice since the Applicant has a pending application before the Court of Appeal vide COA Civil Appeal No. E054 of2024 as can be discerned from annexure marked MAO XI. As such, this Tribunal is being called upon to sit on appeal over the decisions of the High Court and the Court of Appeal.
25.The respondents also filed a preliminary objection dated 3rd July 2024 in which they have raised the following issues;i.That the reference herein is a nullity as the same amounts to an abuse of the due process of law.ii.That this honourable court lacks jurisdiction to entertain this matter for it cannot sit as an appellate court.iii.That the High Court made a finding on the matter in a ruling delivered in the High Court Civil Suit No. 82 of 2006 in terms of the Judgment, decree, ruling and Order attached to the notice of preliminary objection.iv.That the entire suit is void ab initio, non-starter, bad in law an abuse of the due process and should be struck out.v.That the honourable court cannot entertain a matter that is pending in the Court of Appeal vide Court of Appeal Mis App No. 054 of 2024 in which directions have already been given (the directions are attached to the notice).vi.That the reference violates the express provisions of Section 12, Cap 301.
26.The respondents in their submissions contend that the entire reference is a nullity, void ab initio, non-starter, bad in law and an abuse of court process. They have cited the decisions in Dalcom Kenya Ltd v Francis C Maritim & Another [2021] eKLR and Samuel Wanyoike Igecha & Another v James Gitau John & 2 others [2021] eKLR in support of the same.
27.It is further submitted that the order issued herein is an attempt to vacate, stay and/or vary the High Court decision and therefore a usurpation of the findings of the High Court’s jurisdiction. We entirely agree with the foregoing submission as this Tribunal has no jurisdiction to sit on appeal against the Superior Court’s decision. We reject the said invitation.
28.We have seen the decisions cited by the Applicant in the cases of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A 696, China Road & Bridge Corporation v Kelvin Nyuki Muchimbo [2018] eKLR and Oraro v Mbaja [2005] eKLR wherein Superior Courts have discussed with finality what constitutes a preliminary objection and we entirely agree with the holdings therein but find that the facts in the said cases are clearly distinguishable from those in the present case.
29.In so holding, we rely on the locus classicus case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR wherein the Court of Appeal ably discussed the issue of jurisdiction at pages 8-9 as follows;
30.The Superior Court made its decision on the amount of rent payable by the Applicant and even set conditions for stay of execution of the said judgement in its subsequent ruling. We have not been shown any evidence of the alleged intended eviction of the Applicant and we shall be overstepping our mandate if we were to start a fresh litigation over matters already determined in the previous litigation.
31.We further hold that any issue relating to execution of the decree or orders of the Superior Court in the previous litigation ought to be litigated in the said case in line with section 34(1) of the Civil Procedure Act, Cap. 21, which provides as follows; -
32.In the premises, we find and hold that the instant suit is Res Judicata as well as Res Sub-Judice. The interim orders of injunction given herein were made without jurisdiction and the same are candidates for discharge.
Issue (b) Who shall bear the costs of the case?
33.As regards costs, the same are in the 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 costs of the reference and application to the landlords/respondents.
C. ORDERS
34.In view of the above analysis, the final orders which commend to us are;a.The tenant’s reference and application dated 25th June 2024 are hereby dismissed with costs for being Res Judicata and Res Sub-judice.b.The interim orders given on 13th May 2024 are hereby discharged and/or set aside.c.The landlords’/respondents’ costs are assessed at Kshs 50,000/= against the tenant.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 1ST OCTOBER 2024HON. GAKUHI CHEGE(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHon. Joyce Akinyi Osodo(Member)In the presence of:Wambeyi for the landlordGekonge for the Interested PartyN/A for the Tenant