Paul Mwangunya v Abdulaziz Ahmed [2018] KEELC 2382 (KLR)
The bottom line
#Kenya's High Court confirmed the Rent Restriction Tribunal can review its own rent decisions, allowing a tenant's appeal and sending the dispute back for a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal required leave to be filed
The appeal lies as of right; the impugned order was made pursuant to an application for review under section 5(1)(m) of the Rent Restriction Act, attracting order 43 rule 1(x), and order 43 rule 3 preserves the court's liberty not to be limited by order 43.
The court found the refusal order was not an 'other order' requiring leave under order 43 rule 1(2) but arose from a review application, so appeal as of right was available under order 43 rule 1(x). Order 43 rule 3's saving provision allowed the judge to determine the dispute without being limited by order 43.
Whether the Tribunal erred in declining jurisdiction
The Tribunal had jurisdiction to review its earlier decontrol order notwithstanding that the consent/assessment raised rent beyond the statutory ceiling; the appeal merited allowance and the matter was remitted for hearing on the merits.
Section 5(1)(m) of the Rent Restriction Act confers jurisdiction to review decisions notwithstanding decontrol, as held in Islam Ahmed Said v Trustees of King Faisal of Kenya. The court agreed entirely with that reasoning and set aside the Tribunal's order declining jurisdiction.
Status of the consent order
Before adoption, a consent cannot be treated as part of the proceedings; upon adoption it becomes an order of the court, and only the court that issued it may set it aside or review it.
The court explained that the proper forum for setting aside or reviewing the impugned consent order was the Tribunal itself, which had issued it. Accordingly the Appellant's application had to be heard by the Tribunal rather than any other court.
Legal principles established
#- A tribunal is clothed with jurisdiction to entertain an application seeking to review its own earlier orders, even where those orders decontrolled the premises by assessing rent beyond the statutory ceiling.
- A consent of advocates becomes an order of the court only upon adoption; the court that issued an order is the proper court to set it aside or review it.
Court orders
#- 1.The Appeal is allowed
- 2.The Ruling and or order of the Chairman made on 29th August 2016 be and is hereby set aside
- 3.The original file of the Tribunal be returned so as to have the application dated 26th August 2016 heard and determined on its merits
- 4.The Appellant to pay the rent of shs 4000 as per the impugned consent of 7th May 2013 pending determination and final orders of the Tribunal in respect of the impugned application
- 5.Each party will meet their respective costs of this appeal
- On appeal from
- Rent Restriction Tribunal
- 25 of 2013
- Jurisdiction invoked
- Section 8 of the Rent Restriction Act (appeal from Rent Restriction Tribunal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Mwangunya v Abdulaziz Ahmed [2018] KEELC 2382 (KLR)", Case Analysis (2018). Rent Restriction Tribunal Case No. 25 of 2013 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2382/eng@2018-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.