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ELCDismissedNotice of Motion dated 25th November, 2014 (referencing Business Premises Rent Tribunal Case No. 429 of 2014)· [2018] KEELC 163 (KLR)

Laban Wachira & another v Wanjau Philip Kiguta [2018] KEELC 163 (KLR)

Environment and Land Court
20 December 2018
SOS. Okong'o
1,829 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicants, landlords of Plot No. 95 Gikomba, applied by Notice of Motion dated 25th November 2014 for the withdrawal of Business Premises Rent Tribunal Case No. 429 of 2014 from the tribunal and its transfer to the High Court (later the Environment and Land Court) for hearing and determination. Their application was premised on a consent by which Mr. Mbichi Mboroki, the tribunal's sole chairman, recused himself, it being alleged he had previously acted for the respondent as an advocate in Tribunal Case No. 372 of 2011. The respondent opposed, arguing the court's jurisdiction under section 15 of the Business Premises Act was appellate only and that the applicants had shown no prejudice. The court dismissed the application on two grounds. First, the applicants failed to avail the recusal order or credible evidence of the prior conflict; the annexure relied on related to a different case, Tribunal Case No. 324 of 2006, to which the parties were not party, leaving no material on which discretion could be exercised. Second, on the substantive question, the court held that under section 15 of the Business Premises Act it holds only appellate jurisdiction over tribunal matters and cannot assume the tribunal's first-instance jurisdiction while the tribunal is duly constituted, save in extraordinary circumstances such as where a chairman's term has ended and no appointment has been made. Applying the doctrine of necessity, the court observed that a sole tribunal chairman should be very slow to recuse himself, citing Gladys Boss Shollei v Judicial Service Commission on the duty to sit and the presumption of judicial impartiality. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the ELC may take over a tribunal dispute as a court of first instance

Holding

No; the court's jurisdiction over Business Premises Act disputes is appellate only under section 15, and it may assume the tribunal's jurisdiction only in extraordinary circumstances to maintain law and order.

Reasoning

The court examined the Business Premises Act and the Environment and Land Court Act and found no provision conferring original jurisdiction over tribunal matters while the tribunal is duly constituted. Jurisdiction under section 15 is appellate. The court cautioned that allowing such transfers would make the superior court an extension of the tribunal and create a dangerous precedent, though it could intervene in extraordinary circumstances such as where the chairman's term has ended and no appointment has been made.

p. 2
02

Whether the applicants established grounds warranting the court's discretionary intervention

Holding

No; the applicants failed to place before the court the recusal order or evidence of the prior advocate-client relationship, and the annexure relied on related to a different case.

Reasoning

The applicants alleged Mr. Mboroki had acted for the respondent in Tribunal Case No. 372 of 2011 and had consented to recuse himself, but did not avail the recusal order. The annexure marked LW3 was an affidavit of service in Tribunal Case No. 324 of 2006, a case to which the parties here were not parties. Without such material the court could not exercise its discretion.

p. 2

Legal principles established

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  • The Environment and Land Court has only appellate jurisdiction over disputes under the Business Premises Act and cannot assume the tribunal's first-instance jurisdiction while the tribunal is duly constituted, save in extraordinary circumstances.
  • Under the doctrine of necessity, a sole chairman of a tribunal should be very slow to recuse himself, as recusal would deny litigants access to justice.

Court orders

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  1. 1.The Notice of Motion dated 25th November, 2014 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Business Premises (Shops, Hotels and Catering Establishments) Actsection 15
  • Constitution of Kenya, 2010Article 165(3)(a)
  • Constitution of Kenya, 2010Article 196(1)(d)
  • Civil Procedure Act
  • Environment and Land Court Act

Cases cited (3)

  • Atta (Kenya) Limited v Nestlefood Industries Limited (2012) eKLR
    (2012) eKLR
  • Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR
    [2018] eKLR
  • The President of the Republic of South Africa & 2 others v South African Rugby Football Union & 3 others, (CCT16/98) [1999]
    (CCT16/98) [1999]
On appeal from
High Court
Jurisdiction invoked
Section 15 of the Business Premises (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya (appellate jurisdiction); Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Laban Wachira & another v Wanjau Philip Kiguta [2018] KEELC 163 (KLR)", Case Analysis (2018). Notice of Motion dated 25th November, 2014 (referencing Business Premises Rent Tribunal Case No. 429 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/163/eng@2018-12-20

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