Wachira v Karaba & 2 others (Tribunal Case E1019 of 2024) [2025] KEBPRT 395 (KLR) (29 August 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 395 (KLR)
Republic of Kenya
Tribunal Case E1019 of 2024
J Osodo, Chair & Gakuhi Chege, Member
August 29, 2025
Between
Stephen Mwangi Wachira
Applicant
and
David Mwaura Karaba
1st Respondent
Mary Wakari Gituba
2nd Respondent
Jevans Consultant
3rd Respondent
Ruling
A Dispute Background & Analysis of Pleading
1.The matter before this Tribunal arises from the tenant’s Notice of Motion application dated 20th May 2025, brought under certificate of urgency.
2.The tenant/applicant seeks, inter alia, orders to review, vary, or set aside the ruling delivered on 2nd May 2025, which dismissed his earlier application dated 24th January 2025. He further seeks a permanent injunction against the 3rd respondent, whom he accuses of harassment, intimidation, and making visits to his home in connection with the Tribunal’s earlier orders.
3.The tenant deposes in his supporting affidavit that he has no rent arrears since 2004; The 3rd respondent was dismissed by the landlady during proceedings and therefore had no authority to continue acting; The award of Kshs. 22,000 allegedly in favour of the 3rd respondent was erroneous and not reflective of the record; The 3rd respondent’s conduct of visiting his residence, making demands, and uttering threats amounts to harassment and has caused distress to his family.
4.He further deposes that the Tribunal’s ruling failed to reflect the true issues canvassed and has resulted in injustice against a law-abiding tenant.
5.The application is strongly opposed by the 3rd respondent through a replying affidavit sworn on 18th June 2025. The 3rd respondent, through his director Mr. Joshua Mwangi Njoroge, states that the application is frivolous, vexatious, and amounts to an abuse of court process; The ruling of 2nd May 2025 was clear in dismissing the tenant’s application and awarding costs of Kshs. 10,000; He has never visited the tenant’s matrimonial home and does not know where the tenant resides; The only communication made was a standard rent reminder since the tenant had defaulted in paying rent for May 2025 and finally that the tenant is dishonest, has filed multiple applications without merit, and is attempting to re-litigate matters already determined.
6.The 3rd respondent further exhibited evidence of service of previous pleadings and submissions via WhatsApp upon the tenant, disputing claims that he had filed documents without service. He urged the Tribunal to dismiss the application with costs.
B. Issues for Determination
7.From the pleadings and affidavits filed, the issues emerging for determination are:a.Whether the applicant/tenant has established grounds for review, variation, or setting aside of the Tribunal’s ruling dated 2nd May 2025.b.Whether the conduct of the 3rd respondent amounts to harassment warranting injunctive orders.c.Whether the present application amounts to an abuse of court process and is res judicata.d.Who should bear the costs of this application.
C. Analysis of Issues, the Law Applicable & Determination
Issue a): Grounds for Review or Setting Aside the Ruling of 2nd May 2025
8.The application has been brought under Order 45 of the Civil Procedure Rules, which permits review only on limited grounds, namely discovery of new and important evidence not within the applicant’s knowledge at the time of judgment; error apparent on the face of the record; or any other sufficient reason.
9.The Tribunal has carefully examined the ruling of 2nd May 2025. The applicant alleges that the award of Kshs. 22,000 to the 3rd respondent was an error. However, the record clearly shows that what was awarded was Kshs. 10,000 costs to the 3rd respondent against the tenant. This assertion by the applicant is therefore factually incorrect and cannot form the basis of review.
10.Further, the applicant has not demonstrated the existence of new evidence which was not available at the time of the ruling, nor has he identified a clear error on the face of the record. In National Bank of Kenya V Ndungu Njau [1997] eKLR, the Court of Appeal held that “a review may not be granted to enable the court to sit on appeal over its own judgment.” This Tribunal reiterates that position.
11.Consequently, the plea for review or setting aside the ruling of 2nd May 2025 is without merit.
Issue b): Whether the Conduct of the 3rd Respondent Warrants Injunctive Orders
12.The applicant alleges harassment by the 3rd respondent, including visits to his home. The 3rd respondent has denied these allegations, asserting that all communications were professional reminders for rent due.
13.The Tribunal notes that no independent evidence such as police reports (OB numbers), witness statements, or corroborative documents have been presented to support the allegations of harassment. As held in Mbogo & Another v Shah [1968] EA 93, courts do not act on mere allegations unsupported by evidence.
14.In the absence of such proof, the Tribunal finds no sufficient ground to issue permanent injunction orders against the 3rd respondent. In any event, this Tribunal is functus officio, having rendered its decision in the matter on 2nd May 2025 on the issues that were brought by the parties. No new issues can be litigated post the said ruling.
Issue c): Whether the Application is Res Judicata or an Abuse of Process
15.Section 7 of the Civil Procedure Act codifies the doctrine of res judicata, prohibiting the re-litigation of matters already determined between the same parties.
16.The issues raised in this application more particularly interpretation of the ruling and costs were directly canvassed in the application dated 24th January 2025 and conclusively determined in the ruling of 2nd May 2025.
17.The present application is thus res judicata. As was emphasized in E.T V Attorney General & Another [2012] eKLR, litigation must come to an end, and parties should not be allowed to endlessly reopen matters already settled.
Issue d): Costs
18.Costs follow the event under Section 12(1)(k) of Cap 301 (Landlord and Tenant Act) unless the Tribunal directs otherwise. Given that the application is unmerited and amounts to re-litigation, the Tribunal finds it proper to award costs to the 3rd respondent.
D. Final Orders
19.In the result, the Tribunal makes the following orders:a.The tenant’s application dated 20th May 2025 is hereby dismissed in its entirety.b.The prayer for review, variation, or setting aside of the ruling dated 2nd May 2025 is declinedc.The prayer for a permanent injunction against the 3rd respondent is also declined for want of jurisdiction.d.Costs of Kshs. 10,000 are awarded to the 3rd respondent, payable by the applicant.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF AUGUST 2025.HON. JOYCE AKINYI OSODO - PANEL CHAIRPERSONHON. GAKUHI CHEGE - PANEL MEMBERBUSINESS PREMISES RENT TRIBUNALIn the presence of;Kamau for 3rd RespondentTenant present-in-person.