Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedJudicial Review Application (Notice of Motion dated 2nd July, 2015)· [2017] KEELC 1168 (KLR)

Republic v Peterson Ouma Olum & 2 others exparte Mary Wambua [2017] KEELC 1168 (KLR)

High Court of Kenya
13 October 2017
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court confirmed the Rent Restriction Tribunal has no power over rented premises charging more than KES 2,500 monthly rent.

What this practically means

#

Executive summary

#
This was a first-instance judicial review application by notice of motion dated 2nd July, 2015, brought by the ex parte applicant, a landlord, following leave granted on 22nd June, 2015. She sought an order of certiorari to quash the proceedings and ex-parte order made by the Rent Restriction Tribunal on 4th June, 2015 in Rent Restriction Case No. 437 of 2015, and an order of prohibition restraining the Tribunal from continuing to hear that case. Her case was that she had let Flat No. 56 on L.R. No. 140/292, Embakasi, Nairobi to the 1st respondent at a monthly rent of Kshs. 30,000/-, that the tenant defaulted on rent, and that after she issued a 30-day notice to vacate and instructed the interested party to levy distress, the tenant rushed to the Tribunal and obtained injunction orders. She contended that under section 2 of the Rent Restriction Act, Chapter 296 (sic, 293), the Tribunal's jurisdiction is confined to premises whose standard rent does not exceed Kshs. 2,500/- per month, so its orders were made without jurisdiction and were nullities. The application was unopposed. S. Okong'o J applied the Lilian 'S' principle that jurisdiction flows from the law, held the Tribunal had no jurisdiction over premises attracting Kshs. 30,000/- monthly rent, and relied on Desai v Warsama and the Gathenji Njoroge decision to find that the Tribunal's proceedings and order were nullities liable to be quashed and prohibited. The application was allowed in terms of prayers 2 and 3, with costs to the applicant, payable by the 1st respondent.

Key legal issues

#
01

Jurisdiction of the Rent Restriction Tribunal over premises whose monthly rent exceeds Kshs. 2,500/-

Holding

The Tribunal's jurisdiction is limited to premises with a standard rent not exceeding Kshs. 2,500/- per month under section 2 of the Rent Restriction Act; since the suit premises attract rent of Kshs. 30,000/- per month, the Tribunal had no jurisdiction and its order of 4th June, 2015 was a nullity.

Reasoning

Section 2 of the Rent Restriction Act, Chapter 293 excludes dwelling houses with a standard rent exceeding Kshs. 2,500/- per month from the Act. The monthly rent agreed between the applicant and the 1st respondent was Kshs. 30,000/- and was not disputed. Applying the Lilian 'S' principle that jurisdiction flows from the law, the Tribunal could not entertain the dispute. Proceedings and orders made without jurisdiction are nullities, warranting both certiorari to quash the existing order and prohibition to stop the continuing proceedings.

p. 2
02

Entitlement to the prerogative orders of certiorari and prohibition

Holding

Certiorari and prohibition were both warranted: certiorari to quash the null order and prohibition to terminate the proceedings before the Tribunal.

Reasoning

Relying on Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge, the court explained that prohibition forbids an inferior tribunal from continuing proceedings in excess of jurisdiction, while certiorari quashes a decision already made where it is without jurisdiction. Since the Tribunal's proceedings were wholly without jurisdiction, the court found the applicant had made out a case for both orders.

p. 3

Legal principles established

#
  • Jurisdiction flows from the law and a court or tribunal may not arrogate to itself jurisdiction through the craft of interpretation where the wording of legislation is clear.
  • Where a tribunal proceeds to hear and determine a matter not within its jurisdiction, the proceedings and determination are nullities.
  • Prohibition lies against an inferior tribunal exceeding or lacking jurisdiction, and only certiorari can quash a decision already made.

Court orders

#
  1. 1.An order of certiorari removing into the High Court and quashing the proceedings and ex-parte order made by the Rent Restriction Tribunal on 4th June, 2015 in Rent Restriction Case No. 437 of 2015
  2. 2.An order of prohibition prohibiting the 2nd Respondent from hearing or continuing to hear and/or making determination of the suit and application in Rent Restriction Case No. 437 of 2015
  3. 3.Costs of the application to be paid by the 1st Respondent

Authorities

#

Legislation

  • Rent Restriction ActSection 2

Cases cited (5)

  • OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) vs. Public Procurement Administrative Review Board Kenya & 2 others
    NRB CA 28 of 2016 (2017) eKLR
  • In the matter of the Interim Independent Electoral Commission
    Constitutional Application No. 2 of 2011
  • Owners of Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No 266 of 1996
  • Desai -vs- Warsama
    (1967) E.A. 351
Jurisdiction invoked
Judicial review jurisdiction of the High Court (Fair Administrative Action/statutory orders of certiorari and prohibition) pursuant to leave granted on 22nd June, 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Peterson Ouma Olum & 2 others exparte Mary Wambua [2017] KEELC 1168 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 2nd July, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1168/eng@2017-10-13

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