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Court of AppealPartially AllowedCivil Appeal No. 321 of 2002

Stephen Kibathi t/a Malaika Bar v Kabu Kagera & 3 others [2012] KECA 22 (KLR)

Court of Appeal
20 April 2012
4,115 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a landlord cannot claim escrow rent money after agreeing to a Tribunal consent order fixing the rent.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against a ruling of Waki J delivered on 17th May 2002 in H.C.C.C. No. 156 of 1986. The dispute between landlords and tenants of premises in Eastleigh, Nairobi, spanned nearly three decades. The tenants sued in January 1986 seeking a declaration that a distress for rent was illegal, an injunction, return of distrained goods and damages, while the correct rent was concurrently in dispute before the Business Premises Rent Tribunal. By a consent order of 10th July 1986, the tenants paid the undisputed Kshs.2,400/= monthly rent with the disputed Kshs.2,600/= difference going into a joint escrow account of the parties' advocates. The suit was dismissed for want of prosecution on 27th September 1996. By a further Tribunal consent order of 2nd March 1999 the rent was to remain at Kshs.2,400/= until the tenant vacated on 1st June 1999, and the landlord's notice to increase rent was withdrawn. Waki J nonetheless ordered the escrow monies released to the landlords, reasoning that the dismissed suit meant the tenants' case had failed. The Court of Appeal allowed the appeal, holding that the plaint never invoked the High Court's jurisdiction on rent; the dismissal of the injunction and declaration prayers did not justify releasing the escrow to the landlords; and the landlords were bound by the Tribunal consent order. The High Court order was set aside, the escrow monies were released to the appellant, Kshs.20,800/= out of the court deposit was paid to the appellant with the balance to the respondent, and the appellant was awarded costs of the appeal and in the High Court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court plaint invoked the court's jurisdiction to determine the correct rent payable by the tenant to the landlords
  2. 2.Whether the dismissal of the main suit for want of prosecution had the consequence that the money held in escrow should be paid to the landlords
  3. 3.Whether the landlords were bound by the Business Premises Rent Tribunal consent order of 2nd March 1999 fixing the rent at Kshs.2,400/= per month
  4. 4.What orders should be made regarding the money deposited in the joint escrow account and in court

Key legal issues

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01

Scope of the High Court's jurisdiction as delimited by the plaint

Holding

The High Court was never asked to decide the rent payable; it was only asked to declare the distress illegal and to grant injunctive and ancillary relief. The rent dispute belonged to the Business Premises Rent Tribunal, which had already dealt with it.

Reasoning

The court examined the six prayers in the plaint of 17th January 1986 and found none sought a determination of rent. The parties themselves treated the Tribunal as the forum for rent disputes, returning there in 1983 and again in 1998. The arguments on rent advanced in the High Court were directed only at whether an injunction should issue. Waki J's finding that dismissal meant the tenants failed to prove their claim rested on a misapprehension of the prayers in the plaint.

p. 5
02

Consequences of dismissal for want of prosecution on money held in escrow

Holding

The dismissal of the four prayers in the plaint was not an inevitable basis for ordering the escrow money to the landlords, since there was no prayer by the tenant that the money should not be released to the respondent.

Reasoning

Waki J reasoned that because the tenants did not challenge the dismissal, their prayers failed and the money in escrow should go to the landlords. The Court of Appeal held this was illogical: releasing the escrow money could not follow from the dismissal of prayers for a declaration of illegality, an injunction or damages, none of which touched the escrow money. The order exceeded what the plaint had sought.

p. 6
03

Binding effect of the Tribunal consent order of 2nd March 1999

Holding

The consent order fixing rent at Kshs.2,400/= per month until the tenant vacated on 1st June 1999, coupled with the withdrawal of the notice to increase rent, bound the landlords and defeated any claim to the rent difference held in escrow.

Reasoning

The consent order stated the rent payable was to remain at Kshs.2,400/= until vacation of the premises, and the landlord's notice to increase rent was marked as withdrawn. The landlord therefore agreed that no more than Kshs.2,400/= was payable and could not assert entitlement to the difference. Referring the escrow question back to the Tribunal would merely require it to repeat what it had already decided.

p. 6
04

Reopening of an issue already declined twice by the High Court

Holding

The court noted with difficulty why Waki J entertained a third application on the same issue between the same parties after Khamoni J had twice dismissed similar applications, but declined to determine the point as it was not agitated before it.

Reasoning

Khamoni J had refused on 6th April 2000 and again on 26th July 2000 to be drawn into directing distribution of the monies in the advocates' joint account, holding the orders on the file should be interpreted as they stood. The court found it difficult to appreciate why a third application was entertained but expressly declined to belabour the point since it was not raised before it, making this an observation rather than a ratio.

p. 6

Legal principles established

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  • A High Court suit whose plaint seeks only a declaration that distress is illegal, an injunction, return of distrained goods and damages does not invoke the court's jurisdiction to determine the correct rent payable; dismissal of such a suit for want of prosecution does not entitle the landlord to money held in escrow pending the rent dispute.
  • A party to a Business Premises Rent Tribunal consent order fixing the rent and withdrawing a notice to increase rent is bound by that order and cannot claim the difference held in escrow.

Court orders

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  1. 1.The order of the High Court dated 17th May, 2002 is set aside
  2. 2.The money deposited into Barclays Bank, Moi Avenue Branch account No. 4289899 is to be released to the appellant Stephen Kibathi t/a Malaika Bar
  3. 3.Kshs.20,800/= out of the money deposited into court is to be paid out to the appellant
  4. 4.The balance of the money deposited into court is to be released to the respondent
  5. 5.The appellant to have costs of this appeal and costs in the High Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 156 of 1986
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a ruling of the High Court (first appeal on facts and law); no specific constitutional or statutory provision is expressly invoked in the judgment.

Relief refused

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Referral of the question of the escrow money to the Business Premises Rent Tribunal

The Tribunal had already determined the rent by the consent order of 2nd March 1999 and a referral would be an exercise in futility; the matter, over 30 years old, should be brought to an end

p. 6

Costs

The appellant to have costs of this appeal and costs in the High Court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the matter that was brought to the High Court by way of a plaint we have referred to hereabove did not invoke that court’s jurisdiction on the issue of rent payable by the tenant to the landlords in respect of the suit premises
p. 5Jurisdiction delimited by the plaint
We think the landlord was bound by that order and could not be heard to say he was entitled to anything more
p. 6Binding effect of Tribunal consent order
The appeal is allowed. The order of the High Court dated 17th May, 2002 is set aside. In its place we order that the money deposited into Barclays Bank, Moi Avenue Branch account No. 4289899 be released to the appellant Stephen Kibathi t/a Malaika Bar.
p. 6Final orders and disposition
Those arguments were advanced to persuade the High Court on whether or not to issue injunction. None of the parties was asking the High Court to decide on the rent payable.
p. 5Nature of the relief sought in the plaint

Issues in the judgment

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minor

The judgment contains internal date inconsistencies: the interim orders by O'Connor J are described as issued on 17th January 1986 but also referred to as '15th January, 1986' and by 'O'Cannor J'; the interpartes hearing is set for 24th January 1986 but later referred to as '24th July, 1986'; the Tribunal order is dated 26th August 1983 in the proceedings extract but described as made on 23rd August 1983; the dismissal application is dated 31st May 2000 in one place and 31.5.1999 in Khamoni J's quoted order.

minor

The judgment refers to a fifth respondent (the auctioneer) and four landlords including Gideon Njuguna in the narrative, yet the cause title lists only three individual respondents and does not include Gideon Njuguna; counsel is also recorded as stating only Gideon Njuguna remained a party, though the judgment elsewhere states the first respondent passed on in May 1994.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stephen Kibathi t/a Malaika Bar v Kabu Kagera & 3 others [2012] KECA 22 (KLR)", Case Analysis (2012). Civil Appeal No. 321 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/22/eng@2012-04-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.