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ELCDismissedELC Misc Civil Application No 176 of 2017 (JR)· [2018] KEELC 3966 (KLR)

Mason Services Limited v Parklands Baptist Church Registered Trustees & another [2018] KEELC 3966 (KLR)

Environment and Land Court
9 March 2018
BEB M Eboso
4,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that anyone unhappy with a Business Premises Rent Tribunal decision must first use the tribunal's own review and appeal routes before going to court.

What this practically means

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Executive summary

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The applicant, Mason Services Limited, sought an order of certiorari to quash orders made by the Business Premises Rent Tribunal on 13/9/2017 in BPRT Case No 724 of 2016, by which its part-heard reference against a termination notice issued by the 1st respondent landlord was dismissed for want of prosecution and orders of vacant possession were issued ex parte. The applicant contended the reference was part-heard, that the matter was not listed on the hearing date, and that the orders were obtained in breach of natural justice. Both respondents opposed the motion; the 1st respondent raised a preliminary objection on jurisdiction, and both contended the applicant had not exhausted alternative remedies under Cap 301 and the Fair Administrative Action Act. The court framed three questions: supervisory jurisdiction of the ELC, exhaustion of remedies, and whether certiorari should issue. On jurisdiction, the court held that in land-related disputes the ELC, not the High Court (barred by Article 165(5)(b)), holds supervisory jurisdiction over tribunals, empowered by Section 13(7) of the ELC Act to issue prerogative orders. On exhaustion, the court held that BPRT proceedings are quasi-judicial and subject to the Fair Administrative Action Act; a party must exhaust the review and appeal remedies under Sections 12(1) and 15 of Cap 301 or obtain an exemption under Section 9. The applicant made no exemption application and did not appeal, so the motion was premature and lacking merit. The Notice of Motion dated 28/9/2017 was dismissed with costs to the respondent.

Key legal issues

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01

Supervisory jurisdiction of the ELC over tribunals dealing with land disputes

Holding

The Environment and Land Court has supervisory jurisdiction over tribunals and subordinate courts dealing with environment and land disputes, exercisable through prerogative orders under Section 13(7) of the ELC Act

Reasoning

Article 165(5)(b) bars the High Court from handling disputes reserved for the ELC under Article 162(2)(b). Parliament, in Section 13(7) of the ELC Act, granted the ELC power to issue prerogative orders. Section 8 of the pre-2010 Law Reform Act's reference to the High Court must be read as referring to the court of equal status exercising that jurisdiction under the 2010 Constitution, given Section 33 of the Sixth Schedule on legal succession of institutions.

p. 7
02

Exhaustion of alternative remedies under the Fair Administrative Action Act

Holding

A party aggrieved by a BPRT order must exhaust the internal review (Section 12(1) Cap 301) and appeal (Section 15 Cap 301) remedies before bringing judicial review, or apply for exemption under Section 9 of the FAA Act

Reasoning

Proceedings of the BPRT are quasi-judicial and subject to the Fair Administrative Action Act, which gives effect to Article 47. Section 9(2) requires exhaustion of appeal or review mechanisms before judicial review; the court may grant exemption only on application and where the Section 9(4) criteria are satisfied. The applicant made no exemption application and gave no explanation for not appealing, so the motion was premature.

p. 8

Legal principles established

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  • In disputes relating to the environment and the use and occupation of and title to land, the court vested with supervisory jurisdiction over magistrate courts and tribunals dealing with such disputes is the Environment and Land Court
  • A party seeking judicial review against an order of the BPRT must first exhaust the review and appeal remedies available under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, or obtain an exemption order

Court orders

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  1. 1.The Notice of Motion dated 28/9/2017 is dismissed
  2. 2.The respondent shall have costs of the motion

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162; Article 165(5) and (6); Article 47; Section 33 of the Sixth Schedule
  • Environment and Land Court ActSection 13
  • Law Reform Act, Cap 26Section 8
  • Fair Administrative Action ActSections 3, 9
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Sections 12(1), 15
  • Statute Law (Miscellaneous Amendments) Act No 4 of 2012
  • Civil Procedure RulesOrder 12 rule 3

Cases cited (6)

  • Republic v Chairman Land Dispute Tribunal, Kirinyaga District & Another Ex parte Kariuki
    (2005) KLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others
    (2012) KLR
  • Sceneries Limited v National Land Commission
    (2017) eKLR
  • R v Karisa Chengo & 2 Others
    (2017) eKLR
  • In the Matter of the Interim Independent Electoral Commission
  • Gatirau Peter Munya v Dickson Mwenda Kithinji and Two Others
    Sup. Ct. Civil Application No 5 of 2014; [2014] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Mason Services Limited v Parklands Baptist Church Registered Trustees & another [2018] KEELC 3966 (KLR)", Case Analysis (2018). ELC Misc Civil Application No 176 of 2017 (JR). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3966/eng@2018-03-09

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