Wamaitha v Zorea Real Estate Agencies & another (Tribunal Case E657 of 2024) [2024] KEBPRT 1542 (KLR) (Civ) (4 October 2024) (Ruling)
Neutral citation:
[2024] KEBPRT 1542 (KLR)
Republic of Kenya
Tribunal Case E657 of 2024
CN Mugambi, Chair
October 4, 2024
Between
Lucy Wakonyo Wamaitha
Tenant
and
Zorea Real Estate Agencies
Landlord
and
Pyramid Auctioneers
Respondent
Ruling
Introduction
1.The Respondent’s notice of preliminary objection dated 19.6.2024 is brought on the grounds that;-
2.The only issue that I have to determine in the notice of preliminary objection is whether the same is merited or not, whether the objection meets the threshold of a preliminary objection strictly so called.
3.In the often cited case of; Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696, the court held;
4.In the instant objection, it is the Respondents position that the instant suit is Res judicata as it offends the provisions of Section 7 of the Civil Procedure Act, Cap 21 of the Laws of Kenya. The said Section provides as follows;-
5.The court in the case of the Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR held that for the bar of Res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjuctive terms;a.The suit or issue was directly and substantially in issue in the former suit.b.The former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.
6.Can the preliminary objection raised by the Respondents answer to the above requirements for the raising of res judicata as a bar to the instant proceedings? In order to establish whether this suit is Res judicata, the Respondents will need lead evidence to establish all the elements listed at paragraph 5 above. The Respondents would further be required to annex the pleadings in the former suit and the decision of the Tribunal in the said suit to afford the court a comparison of the former suit with the subsequent suit.I therefore agree with the observation in the Tenant’s submissions that the Respondents ought in the circumstances, to bring a formal Application supported by affidavits and exhibits.In the case of; Oraro vs Mbaja [2005] eKLR, the court while dealing with what amounts to a preliminary objection stated as follows;-
7.In the circumstances, I do not find any merits in the Respondents notice of preliminary objection dated 19.6.2024 and the same is hereby dismissed with costs to the Tenant.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF OCTOBER, 2024.HON. CYPRIAN MUGAMBICHAIRPERSONBUSINESS PREMISES RENT TRIBUNALDelivered in the presence of Mr. Kuria for the Tenant and Ms. Ndwiga holding brief for Mr. Njehu for the LandlordCourt: Parties to file their responses and submissions on the Application dated 11.6.2024 within fourteen days. Mention on 14.11.2024.