Mwihaki & 2 others v Mohammed t/a General Office Technology Solution & 3 others; Meru Central Coffee Cooperative Union Limited (Landlord) (Tribunal Case E1183 of 2024) [2024] KEBPRT 1747 (KLR) (13 December 2024) (Ruling)
Neutral citation:
[2024] KEBPRT 1747 (KLR)
Republic of Kenya
Tribunal Case E1183 of 2024
P May, Member
December 13, 2024
Between
Lilian Mwongeli Mwihaki
1st Sub-Tenant
Anne Ndungu
2nd Sub-Tenant
Millicent Lutenyo
3rd Sub-Tenant
and
Feisal Shariff Mohammed T/A General Office Technology Solution
1st Tenant
Hamza Mohammed
2nd Tenant
Galgolo Jatta
3rd Tenant
Mohammed Abudullahi
4th Tenant
and
Meru Central Coffee Cooperative Union Limited
Landlord
Ruling
1.The applicants filed a notice of motion under certificate seeking for a plethora of orders primarily to avert what they believed was a looming eviction by the head tenants. They contended that they had always paid rent as when it fell due but the head tenants had failed to remit the same to the landlord. It was their assertation that the head tenants had accrued rent arrears amounting to Kshs. 7,000,000/-
2.The application was placed before the Tribunal on 31st October, 2024 whereby it was ordered that the application be served and consolidated with BPRT 813/2024. The application was opposed by the head tenants through the replying sworn on 14th November, 2024. The parties were directed to canvass the application by way of written submissions which have been summarized hereinbelow:
Applicants’ case
3.The sub- tenants admitted to having been in occupation of the demised premises for a prolonged period. They stated that they have always undertaken their obligation as per the terms of the tenancy. It was their contention that they had learnt through the landlord that the head tenants had not been remitting rent to the landlord and had accumulated rent arrears to the tune of Kshs. 7,000,000/-. This had certainly created a rift between the landlord and the head tenants and turned their relationship sour. The applicants stated that the head tenants had unlawfully and irregularly locked their premises. They stated that this was unjustified and unfounded.
4.Flowing from the above and in a bid to protect their livelihoods, the sub-tenants stated that they were amenable to having the rent deposited with the Tribunal. The sub- tenants maintained that they had always met their obligations and urged the Tribunal not to punish them because of the differences between the landlord and the head tenants.
Respondents’ case
5.The respondents’ stated that the applicants had failed to disclose the fact that there were similar proceedings before the Tribunal whereby the Tribunal had made a determination. The present proceedings were therefore concealed attempts to frustrate the respondents from enjoying the fruits of the judicial decisions which had been issued in their favour.
6.The respondents’ stated further that the applicants had disobeyed lawful orders which had been issued hence did not merit to be granted the orders sought.
Analysis
7.Having set out the facts above, it is important that the Tribunal interrogates the merits of the prayers sought by the applicants. The respondents raised questions about the existence of similar proceedings that the Tribunal had made a determination on. Simply put, it is the respondents contention that the matter is res judicata.
8.In Edward Okongo Oyugi & 2 others v The Attorney General the Court gave the following caution on res judicata:
9.In the case of Zurich Insurance Company PLC v Colin Richard [2011] EWCA CIV 641, the court explained the principal of res judicata in the following terms:
10.I have taken time to peruse through the records in BPRT E813 of 2024. The parties in the proceedings are similar and the transaction that gave rise to the proceedings therein are similar. The applicants did not offer any plausible explanation on why they filed fresh proceedings instead of pursuing an appeal against orders issued by the Tribunal. This Tribunal will therefore decline the invitation to sit on its own appeal.
11.In the circumstances, the notice of motion dated 30th October, 2024 is dismissed in its entirety with costs assessed at Kshs. 30,000 awarded to the head tenants.
HON. PATRICIA MAYMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, signed and delivered virtually this 13th day of December 2024 in the presence of Ms. Munyangi for the Applicants and No Appearance for the RespondentHON. PATRICIA MAYMEMBERBUSINESS PREMISES RENT TRIBUNAL