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

3. That the Reference in the Tribunal BPRT No. 870 of 2018 was against two of the landlords and was not filed by the plaintifis and that the order issued on 10/09/2019 was dumped on the plaintifis since they aver that they were never served with the court proceedings. Further the plaintifi avers that there exists two applications at the tribunal filed by the defendant but they are not proceedings because the defendant has failed to serve the applications on the plaintifi since they have sworn an afidavit stating that service of the application on the plaintifi needs to be undertaken by the Tribunal and not the defendant. 4. Counsel for both parties filed their written submissions. It was submitted for the plaintifis/ respondents the application dated 6/12/2021 was brought in bad faith since it was filed the morning when this suit was scheduled for hearing. It was admitted in the submissions that there is an existing reference before the tribunal but the same has never been served on the plaintifis/respondents. Counsel submitted that the dispute at the Business Premises Rent Tribunal has been stayed by an application by the defendant who is the applicant in this suit pending the hearing and determination of this suit. Further that there two other applications before the tribunal all having been heard ex parte and pending to be heard inter partes. The plaintifis herein have never been served with the said applications. 5. The Counsel for the plaintifis/respondents submitted that the reference being referred to by the defendant/applicant has never been served on the plaintifi/respondents. Counsel referred the Court to Section 6 and Section 3 of the Civil Procedure Act and Order 51 Rule 1 and submitted that the application ought to have been brought by way of a Notice of Motion and not Chamber Summons. He also contends that the Reference was not served on the plaintifis they only came to know about it when they brought the proceedings. 6. The plaintifis/respondents have relied on the case of 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 which the Counsel for the plaintifi contends that the issue of service is at the core of a Reference matter. He also referred to the case of Prime Rock Company vs Joseph Mwangi Ndegwa (2019) eKLR. The plaintifis/respondents therefore contend that the defendant/ applicant is abusing the court by using it to delay the instant suit. 7. The defendant/applicant on his part avers that there is another matter in court which the plaintifis/ respondents have not disclosed BPRT No. 870 of 2018 which has not been finalized. But he also states that the respondents have acknowledged that the tribunal matter exists and therefore this instant suit cannot continue. The applicant therefore states that the doctrine of subjudice come into play. He refers to Section 6 of the Civil Procedure Act which addresses the doctrine of res sub-judice and he also referred to the HCC No.85 of 2010 – Eliud Wanyama vs Kenya Plant Health Inspectorate Service. He therefore asked that the current suit be struck out for being frivolous and vexatious thus an abuse of the court process. Analysis and Determination 8. It is not in dispute that there is another matter BPRT No. 870 of 2018 which is before the Tribunal and the plaintifis/respondents are aware of existence of this matter. 9. Indeed, according to the Reference before the Tribunal, the defendant/applicant has alleged that the plaintifi has refused to receive rent from the defendant/applicant and wants to levy distress on them. The defendant/applicant has chosen to pay the rent to the advocates of the plaintifis/respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2210/eng@2022-04-27 2

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10. The defendant/applicant contend that the plaintifis/ respondents in the instant suit are not entitled to mesne profits since the defendant/applicant wanted to pay rent but the plaintifis/respondents refused. Further that the defendant /applicant is the one who is in the suit premises. 11. It was submitted and demonstrated by both the plaintifis and the defendant that the defendant has actually sought the intervention of the Business Premises Rent Tribunal on the dispute regarding their tenancy. This was not contested by the plaintifis/respondents’ counsel Mr. Mindo who submitted that though the reference was not served on the plaintifis /respondents they got to know about it when they purchased the documents from the tribunal. The point is that there is already in existence proceedings involving the dispute herein between the parties herein before a competent statutory tribunal. The Plaintifis are entitled to appear before the said tribunal as parties with genuine concerns and grievances: see Lord Denning in Attorney General of Gambia –v- Njie [1961]2 All E R 504. The Plaintifis would not be joining the fray before the tribunal as mere observers. I would find, as I do, that there is already an alternate forum and procedure where the Plaintifis grievances can be proportionately adjudicated without disproportionate expenditure. The tribunal is best placed to adjudicate the matter with the possibility that the tribunal’s determination may invite an appeal to this court. 12. In the result, I would uphold the defendant/applicant’s application dated 6/12/2021but would not strike out the suit. I would direct and order as I hereby do that this suit be transferred to the Business Premises Rent Tribunal to be determined alongside BPRT cases No. 870 of 2018. 13. The costs of the application will be in the cause. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF APRIL, 2022. ……………………………… MOGENI J. JUDGE In the presence of:Mr. Mindo for the Plaintifi/Respondent Mr. J. Wachira for the Defendants/Applicants https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2210/eng@2022-04-27 3

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