Mohammed Nyongesa Sichangi v Benson N Opwora [2019] KECA 620 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that tenants cannot dodge rent tribunal orders by filing a fresh lawsuit — they must appeal within the prescribed legal channels.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Environment and Land Court judge erred in striking out the appellant's plaint and notice of motion as an abuse of the court process
- 2.Whether the principle of res judicata under section 7 of the Civil Procedure Act barred the appellant's new suit challenging the BPRT orders
- 3.Whether the appellant, having failed to appeal against the BPRT orders, could re-litigate the same issues in a fresh suit
Key legal issues
#Whether res judicata applied to the appellant's fresh suit challenging the BPRT orders
Yes. The former BPRT proceedings between the same parties covered rent and possession, and the ownership claim was a defence that ought to have been raised there; the appellant could not re-litigate it in a new suit.
Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties before a competent court. The BPRT reference between landlord and tenant concerned rent and possession. Under Explanation 4, any matter that might and ought to have been raised as a defence, including a challenge to the landlord's ownership, is deemed to have been in issue. Section 121 of the Evidence Act additionally estops a tenant from denying the landlord's title.
The proper avenue for challenging BPRT orders
The laid-down procedure was an appeal under section 15 of the Landlord and Tenant Act, or judicial review if jurisdiction was challenged; a fresh declaratory suit was an abuse of process.
The BPRT orders granting possession and distress had not been set aside and no appeal was filed. Instead of pursuing the statutory appeal route under section 15, the appellant filed a new plaint seeking a declaration of nullity. The court held this was contrary to the prescribed procedure, and that a jurisdictional challenge, if any, lay in judicial review, justifying the striking out of the plaint as an abuse of process.
Legal principles established
#- A party aggrieved by an order of the Business Premises Rent Tribunal must challenge it by appeal under section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, or by judicial review if jurisdiction is challenged, and not by filing a fresh suit; ownership issues that could have been raised as a defence before the BPRT are barred by res judicata.
- Under Explanation 4 to section 7 of the Civil Procedure Act, a matter which might and ought to have been made a ground of defence or attack in a former suit is deemed to have been directly and substantially in issue in that suit for purposes of res judicata.
- A tenant is estopped from denying the landlord's title under section 121 of the Evidence Act.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court of Kenya at Bungoma
- Land and Environment Case No. 63 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Environment and Land Court (statutory appellate jurisdiction)
Relief refused
#Setting aside the striking out of the appellant's plaint and notice of motion
The suit was an abuse of the court process as the appellant failed to follow the laid-down procedure for challenging BPRT orders
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is not therefore open to the appellant to bring the issue afresh in a new suit. At best, if the appellant was challenging the jurisdiction of the BPRT, then, he ought to have filed an application for judicial review.
Under explanation No. 4 to section 7 of the Civil Procedure Act, any matter which might and ought to have been made a ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit
a tenant is by section 121 of the Evidence Act estopped from denying the landlord’s title
We find no merit in this appeal and do therefore dismiss it with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Nyongesa Sichangi v Benson N Opwora [2019] KECA 620 (KLR)", Case Analysis (2019). Civil Appeal No. 114 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/620/eng@2019-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.