John Mugo Ngunga v Margaret M. Murangi [2014] KECA 519 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a rent tribunal order issued without notice to the landlord, confirming tribunals cannot exceed their statutory enforcement powers.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Chairman of the Business Premises Rent Tribunal sitting alone
The learned Judge was right that the Chair alone can constitute a tribunal under section 11 of Cap 301 and did not act ultra vires in that respect.
Section 11(1) provides that a Tribunal shall consist of a person or persons appointed by the Minister. Since a single person suffices, the Chair sitting alone was properly constituted and the appointment and composition requirement was satisfied. The objection to coram therefore fails as a ground of review.
Tribunal's power to issue ex-parte mandatory injunction and invoke police enforcement
The Chair acted in excess of the powers granted by the Act; those orders were properly quashed by certiorari.
Rules 19 and 21 of the Tribunal Rules mandate fixing a hearing date and service of a hearing notice on the parties, and section 14 of the Act prescribes enforcement through the subordinate court. Issuing a mandatory injunction ex-parte and directing the OCS to enforce it bypassed these procedures and exceeded the statutory scheme, rendering the appellant entitled to certiorari.
Availability of judicial review despite alternative remedies
The Tribunal is a quasi-judicial body and its Chairman exercises judicial power; judicial review was available notwithstanding a right of appeal or to seek setting aside.
Following Shah Vershi Devshi & Co. Ltd v The Transport Licensing Board, an alternative remedy does not preclude an applicant from seeking certiorari. The High Court erred in effectively directing the appellant to the alternative remedies of setting aside or appeal rather than deciding the review.
Proper procedure for challenging leave granted in judicial review
A respondent's remedy is to apply to the judge who granted leave to set it aside, not to have the motion dismissed as fatally defective.
Relying on R v Communications Commission of Kenya ex-parte East African Televisions Network Ltd and Halsbury's Laws of England, once leave is granted the respondent must invoke the court's inherent jurisdiction before the same judge. The High Court's obiter that the motion was fatally defective for not citing sections 8 and 9 of the Law Reform Act was erroneous, though the Judge went on to deal with the merits.
Legal principles established
#- A tribunal chairman sitting alone constitutes a tribunal properly constituted under section 11 of Cap 301 and exercises jurisdiction within the Act; but issuing ex-parte mandatory injunctions and enforcing them through the police exceeds the Tribunal's statutory powers and is amenable to certiorari
- Once leave to institute judicial review proceedings is granted, the appropriate procedure for challenging that leave is an application to the judge who granted leave to set it aside, not dismissal for defect
- The existence of an alternative remedy such as appeal or review does not preclude relief by way of certiorari against a quasi-judicial tribunal
Court orders
#- 1.The appeal is allowed
- 2.The order of the High Court dismissing the appellant's Notice of Motion dated 27th April 2010 is set aside
- 3.Substituted therefor is an order quashing the order of the Chairperson of the Business Premises Rent Tribunal dated 3rd March 2008
- 4.No orders as to costs in the High Court and in this appeal; each party to bear their own costs
- On appeal from
- High Court of Kenya at Embu
- H.C. Misc. Civil Appeal No. 15 of 2008 (JR)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court ruling in judicial review proceedings (Order LIII Civil Procedure Rules; Law Reform Act Cap 26)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mugo Ngunga v Margaret M. Murangi [2014] KECA 519 (KLR)", Case Analysis (2014). Civil Appeal No 30 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/519/eng@2014-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.