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ELCAllowedJudicial Review (Notice of Motion dated 22nd November 2016), Kericho· [2018] KEELC 3420 (KLR)

Republic v Resident Magistrate Kericho & 2 others Ex-parte Moses Korir [2018] KEELC 3420 (KLR)

Environment and Land Court
9 May 2018
JOJ.M Onyango
1,758 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kericho court quashed an ex-parte eviction order because the landlord skipped the proper legal process and never gave the tenant a chance to be heard.

What this practically means

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Executive summary

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The ex-parte applicant moved the Environment and Land Court at Kericho by Notice of Motion dated 22nd November 2016 under Order 53 of the Civil Procedure Rules, seeking certiorari to quash an ex-parte eviction order issued by the Resident Magistrate's Court, Kericho on 28th September 2016 in Kericho CM Misc Civil Application No. 23 of 2016, and orders of prohibition restraining the landlord (3rd Respondent) from evicting him from premises on L.R No. Kericho Town 631/289/11 or from executing an alleged Business Premises Rent Tribunal determination of 14th September 2016. The applicant contended he was never served with the landlord's termination notice dated 3rd May 2016 nor with the Miscellaneous application, and that another Tribunal case (Nakuru BPRT Case No. 21 of 2013) was subsisting. The 3rd Respondent countered that the tenancy was automatically determined when the applicant failed to file a reference, that the eviction was lawfully executed pursuant to the court order, and that the application was overtaken by events. The court framed one issue: whether the Resident Magistrate's order should be quashed. Relying on section 13(6) and (7) of the Environment and Land Court Act, the court found that the Magistrate acted without legal basis since no certified Tribunal decree was filed as required by section 14 of Cap 301, and that the ex-parte grant breached natural justice. Certiorari and prohibition issued, with costs to the applicant.

Key legal issues

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Whether the Resident Magistrate's ex-parte eviction order of 28th September 2016 should be quashed

Holding

The order was quashed because the court acted without legal basis, no certified Tribunal decree was filed under section 14 of Cap 301, and the applicant was not heard.

Reasoning

The 1st Respondent issued an eviction order without confirming that the statutory procedure for determining a controlled tenancy under section 14 of Cap 301 had been followed. No certified decree or order of the Tribunal was filed. The Miscellaneous application was made ex-parte and the applicant was never served, contrary to the cardinal principle of natural justice that both sides be heard. The ex-parte grant was a subversion of the cause of justice, and it mattered not whether the landlord-tenant relationship had ended.

p. 3

Legal principles established

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  • A certified copy of a Tribunal determination or order must be filed in a competent subordinate court before it can be enforced as a decree of that court.
  • A decision made in violation of natural justice is a nullity regardless of whether the same result would have been reached had the affected party been heard.

Court orders

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  1. 1.An order of certiorari removing into the court and quashing the 1st Respondent's decision and order dated 28th September 2016 in Kericho CM Misc Civil Application No.23 of 2016
  2. 2.An order of prohibition prohibiting the Respondents from taking any further proceedings, execution or enforcement of the 1st Respondent's decision dated 28th September 2016
  3. 3.The 3rd Respondent to pay the costs of the application to the ex-parte applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 53
  • Landlord, Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 14
  • Environment and Land Court ActSections 13(6) and (7)

Cases cited (3)

  • Republic V Attorney General & 4 Others Ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji
    (2014) eKLR
  • Republic V Chief Magistrate Milimani Commercial Court & 2 Others Ex-parte Violet Ndanu Mutinda & 5 Others
    (2014) eKLR
  • Msagaha V Chief Justice & 7 Others
    Nairobi HCMCA No. 1062 of 2004 (2006) 2 KLR
Jurisdiction invoked
Sections 13(6) and (7) of the Environment and Land Court Act; Order 53 of the Civil Procedure Rules

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, "Republic v Resident Magistrate Kericho & 2 others Ex-parte Moses Korir [2018] KEELC 3420 (KLR)", Case Analysis (2018). Judicial Review (Notice of Motion dated 22nd November 2016), Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3420/eng@2018-05-09

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