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ELCOtherNot stated in the judgment as provided· [2022] KEELC 2210 (KLR)

Wanjohi & 2 others v The Red Apple Limited (Environment & Land Case 553 of 2018) [2022] KEELC 2210 (KLR)

High Court of Kenya (the judgment does not name the court; MOGENI J. sits as Judge)
27 April 2022
MOMogeni
1,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court sent a landlord-tenant dispute to the Business Premises Rent Tribunal because that tribunal was already handling the same matter.

What this practically means

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Executive summary

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The defendants filed a Chamber Summons dated 6/12/2021 seeking to strike out the plaintiffs' entire suit on grounds that it was scandalous, frivolous and vexatious, an abuse of court process, that the plaintiffs concealed material facts, and that another suit, BPRT No. 870 of 2018, was pending before the Business Premises Rent Tribunal, engaging the doctrine of res sub-judice under Section 6 of the Civil Procedure Act. The plaintiffs, through a Replying Affidavit sworn by Isaac Gathunju Wanjohi, opposed the application, contending that the Tribunal reference was brought against only two of the landlords, was never served on them, and that the defendants had themselves filed other Tribunal applications that went unserved and were heard ex parte. In submissions, the plaintiffs argued the application was brought in bad faith on the morning of the hearing, that the Tribunal dispute had been stayed by the defendant pending this suit, and that the Chamber Summons should have been a Notice of Motion. The defendant maintained the pending Tribunal reference barred the suit. Mogeni J. found it undisputed that BPRT No. 870 of 2018 existed and that the plaintiffs were aware of it. Holding that a competent statutory tribunal was already seized of the same tenancy dispute and offered an alternate, proportionate forum in which the plaintiffs could participate as genuine parties, the court upheld the application but declined to strike out the suit. Instead, it ordered the suit transferred to the Business Premises Rent Tribunal to be determined alongside BPRT Case No. 870 of 2018, with costs of the application in the cause.

Key legal issues

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01

Res sub-judice / alternate forum

Holding

The existence of BPRT No. 870 of 2018, which the plaintiffs acknowledged, meant the High Court should not continue with the suit; it was transferred to the Tribunal.

Reasoning

The court found it undisputed that a reference before the Business Premises Rent Tribunal involving the same tenancy dispute was pending and that the plaintiffs were aware of it. Relying on the principle that an alternate competent forum exists for the plaintiffs' grievances, the court held the Tribunal best placed to determine the dispute, with any appeal lying to the High Court. It therefore stayed its hand by transferring the suit rather than striking it out.

p. 3
02

Abuse of process / striking out

Holding

Although the application was upheld in substance, striking out was not the appropriate remedy; transfer to the Tribunal served the interests of justice.

Reasoning

The defendant sought striking out on grounds of frivolity, vexatiousness and non-disclosure of BPRT No. 870 of 2018, invoking Section 6 of the Civil Procedure Act. The court accepted that the Tribunal proceedings existed and were not contested, but concluded that the proportionate response was to transfer the suit to the Tribunal to be heard alongside the reference rather than extinguish the plaintiffs' claim entirely.

p. 3

Legal principles established

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  • Where competent statutory tribunal proceedings on the same dispute already exist, that tribunal is the appropriate forum and the court may transfer the suit there rather than strike it out.
  • A party aware of tribunal proceedings is entitled to appear before the tribunal as a party with genuine grievances, not as a mere observer.

Court orders

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  1. 1.The defendant/applicant's application dated 6/12/2021 is upheld but the suit is not struck out
  2. 2.The suit is transferred to the Business Premises Rent Tribunal to be determined alongside BPRT Case No. 870 of 2018
  3. 3.Costs of the application are in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 3
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • Tropical Foods International & Another vs Eastern and Southern African Trade and Development Bank & Another
    (2017) eKLR
  • Terry Wanjiku vs Equity Bank Ltd & Another
    (2012) eKLR
  • Prime Rock Company vs Joseph Mwangi Ndegwa
    (2019) eKLR
  • Eliud Wanyama vs Kenya Plant Health Inspectorate Service
    HCC No. 85 of 2010
  • Attorney General of Gambia –v- Njie
    [1961] 2 All E R 504
Jurisdiction invoked
Original civil jurisdiction; the judgment invokes Section 6 of the Civil Procedure Act (res sub-judice) and the jurisdiction of the Business Premises Rent Tribunal

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, "Wanjohi & 2 others v The Red Apple Limited (Environment & Land Case 553 of 2018) [2022] KEELC 2210 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2210/eng@2022-04-27

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