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Court of AppealDismissedCivil Appeal No. 31 of 2013· [2014] KECA 822 (KLR)

Zakayo Michubu Kibuange v Lydia Kaguna Japheth & 2 others [2014] KECA 822 (KLR)

Court of Appeal of Kenya
14 February 2014
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
4,706 words in judgment
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The bottom line

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The Court of Appeal confirmed Kenya's Business Premises Rent Tribunal cannot handle leases longer than five years, and its orders can be quashed.

What this practically means

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Executive summary

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The 1st respondent, registered proprietor of premises in Mombasa, sub-let them to the appellant by a written sub-lease dated 11th November 2003 for five years and three months. On refusing to renew, she gave termination notices; the appellant instead complained to the Business Premises Rent Tribunal, obtained ex-parte restraining and reconnection orders, and had them adopted by the Resident Magistrate for execution. The 1st respondent obtained leave and mounted judicial review for certiorari. Ibrahim, J. allowed the motion, holding the written tenancy of over five years fell outside the Tribunal's jurisdiction under Cap 301. The appellant appealed on four grounds, arguing that only the Tribunal could determine whether a tenancy was controlled under section 12(1)(a), that the sub-lease was disputed and forged, that judicial review was unsuitable for contested facts, and that an alternative remedy existed per Speaker v Karume. The Court of Appeal, in a single judgment of the court (Okwengu, Makhandia and Sichale, JJ.A.), dismissed the appeal on 14th February 2014. It affirmed that a written lease exceeding five years is not a controlled tenancy, that the Tribunal acted in excess of jurisdiction, that certiorari lies despite alternative remedies, and that candour is required of parties invoking discretionary remedies. The High Court's decision was affirmed with costs to the 1st respondent.

Key legal issues

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01

Whether the sub-lease fell outside the Business Premises Rent Tribunal's jurisdiction

Holding

The written sub-lease for 5 years and 3 months was not a controlled tenancy under Cap 301, so the Tribunal acted without or in excess of jurisdiction

Reasoning

The 1st respondent exhibited a written sub-lease dated 11th November 2003 for 5 years and 3 months, witnessed by an advocate who swore an affidavit confirming execution. The appellant alleged forgery but took no remedial steps, and he who alleges must prove. Section 2(1)(b)(1) excludes written tenancies exceeding five years without breach termination provisions.

p. 5
02

Whether judicial review was proper despite an alternative remedy before the Tribunal

Holding

The existence of an alternative remedy is no bar to certiorari; judicial review was the efficacious route where the Tribunal lacked jurisdiction

Reasoning

The Court reaffirmed Bahajj, Kadamas and Shah Vershi Dershi that alternative remedies do not preclude certiorari. The Tribunal's orders had run their course to execution, and the appellant had dishonestly invoked a tribunal he knew lacked jurisdiction, hiding material facts; asking the 1st respondent to return to the Tribunal would aid his mischief.

p. 6
03

Whether disputed facts made judicial review inappropriate

Holding

No; contestations are inherent in judicial review and the alleged disputed facts had ready answers on the record

Reasoning

Judicial review proceedings, like other proceedings, involve opposing positions which the court determines. The appellant's signature was witnessed and confirmed by affidavit, the Vishelectric lease issue was irrelevant, and counsel conceded the cheques were returned uncashed.

p. 7

Legal principles established

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  • A written tenancy for a period exceeding five years, without provision for termination other than for breach, is not a controlled tenancy and the Business Premises Rent Tribunal has no jurisdiction over it
  • The existence of an alternative legal or equitable remedy is no bar to the grant of an order of certiorari
  • The High Court is not ousted from determining whether a tribunal had jurisdiction merely because section 12(1)(a) of Cap 301 empowers the Tribunal to determine whether a tenancy is controlled
  • The High Court has power to quash a decision of a statutory tribunal for want or excess of jurisdiction, breach of natural justice, error of law on the face of the record, fraud or collusion

Court orders

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  1. 1.Appeal dismissed with costs to the 1st respondent
  2. 2.Decision of the High Court (Ibrahim, J.) allowing the substantive Notice of Motion for certiorari affirmed

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 2(1)(b)(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 2 (definition of controlled tenancy, (a)-(b))
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 12(1)(a)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301section 12(1)(i)

Cases cited (9)

  • Speaker of the National Assembly v Karume
    (1990-1994) EA 546 (CAT)
  • Syedna Mohamed Burhannudin Saheb v Mohamedally Hassanally
    Civil Appeal No. 28 of 1980 (UR)
  • Kadamas v Municipality of Kisumu
    (1985) KLR 954
  • Bahajj Holdings Ltd v Abdo Mohamed Bahajj & Company Ltd & Anor
    Civil Application No. Nai 97 of 1998 (UR)
  • Raichand Khimji & Co. v Attorney General
    (1997) EA 536
  • Chief Constable of the North Wales Police v Evans
    (1982) I WLR 1155
  • R v National Environmental Management Authority and 2 others ex-parte Greenhills Investments Ltd and 2 others
    (206) I KLR (E & L)
  • David Mugo t/a Manyatta Auctioneers v Republic
    Civil Appeal No. 265 of 1997 (unreported)
  • Shah Vershi Dershi & Co. Ltd v The Transport Licensing Board
    (1970) EA 631
On appeal from
High Court of Kenya at Mombasa
Msc.C.App. No. 239 of 2009
Jurisdiction invoked
First instance appellate jurisdiction of the Court of Appeal over the High Court's judicial review ruling (judgment does not cite a specific provision; cf. the Court of Appeal Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Zakayo Michubu Kibuange v Lydia Kaguna Japheth & 2 others [2014] KECA 822 (KLR)", Case Analysis (2014). Civil Appeal No. 31 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/822/eng@2014-02-14

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