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ELCPartially AllowedJudicial Review application arising from Notice of Motion dated 24th October, 2017· [2019] KEELC 951 (KLR)

Republic v Chairman Rent Restriction Tribunal; Samuel Joel Kibe & another (Interested Parties) Ex-parte Charles Macharia Mugo [2019] KEELC 951 (KLR)

Environment and Land Court
7 November 2019
3,138 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Rent Restriction Tribunal has no power over tenancies with rent above Kshs. 2,500 monthly, and orders it makes anyway are void.

What this practically means

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Executive summary

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The applicant, a tenant of the 1st interested party at Zimmerman Plot No. 22A paying a monthly rent of Kshs. 16,000/=, moved the court by Notice of Motion dated 24th October, 2017 seeking certiorari to quash the proceedings in Rent Restriction Tribunal Case No. 636 of 2016 and prohibition against further hearing of that case. He contended that the tribunal lacked jurisdiction because its jurisdiction was limited to premises whose standard rent did not exceed Kshs. 2,500/= per month, and that it disregarded his preliminary objection and issued orders on 21st August, 2017 authorising distress for rent and vacant possession. The interested parties opposed, arguing the standard rent had not been assessed and that the tribunal therefore had jurisdiction; they also raised a preliminary objection on prematurity and exhaustion of remedies. The court framed four issues, centring on the tribunal's jurisdiction. It held that the tribunal was obliged to determine its jurisdiction first upon objection, and that the interested parties' argument that an unassessed standard rent conferred jurisdiction was untenable and self-defeating. Since the applicant was admittedly paying Kshs. 16,000/= monthly, the premises were prima facie outside the tribunal's jurisdiction, and in assuming jurisdiction the tribunal acted without jurisdiction, rendering the proceedings and orders of 21st August, 2017 nullities. The court allowed prayers (a) and (b), preserved the applicant's tenant obligations, permitted the 1st interested party to sue in a competent court, and, because the applicant was in rent default, denied him costs, directing each party to bear its own costs.

Key legal issues

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01

Jurisdiction of the Rent Restriction Tribunal over premises whose standard rent exceeds Kshs. 2,500/= per month

Holding

The tribunal acted without jurisdiction in entertaining a dispute over premises where the applicant was paying a monthly rent of Kshs. 16,000/=.

Reasoning

Section 2(1)(c) of the Rent Restriction Act limits the Act to dwelling houses with a standard rent not exceeding Kshs. 2,500/= per month. Standard rent is defined in section 3(1). Since the applicant's agreed monthly rent was Kshs. 16,000/=, the premises were prima facie outside the tribunal's jurisdiction, and the tribunal had a duty to determine the standard rent, or assess it, before proceeding. It did not, and acted irregularly and unreasonably.

p. 3
02

Duty of a tribunal to determine its own jurisdiction before entertaining a dispute

Holding

Once the issue of jurisdiction was raised, the tribunal was obliged to determine it first before issuing any orders.

Reasoning

The applicant raised a preliminary objection to jurisdiction at the first opportunity. The interested parties claimed the tribunal ruled on jurisdiction but placed no evidence of such a decision before the court. The court held that a tribunal must enquire into the standard rent, and if the premises were not let or erected as at 1st January, 1981, assess the standard rent before hearing the substantive claim. Proceeding otherwise was irregular and unreasonable.

p. 3
03

Consequence of proceedings conducted without jurisdiction

Holding

The tribunal's proceedings and the orders of 21st August, 2017 were nullities and liable to be quashed.

Reasoning

Following Desai v. Warsama, where a court or tribunal assumes jurisdiction over a matter not within its jurisdiction, the proceedings and determination are nullities. The court found the tribunal had no jurisdiction, and therefore the proceedings and orders of 21st August, 2017 were nullities amenable to judicial review under section 13(7)(b) of the Environment and Land Court Act.

p. 4

Legal principles established

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  • Jurisdiction is everything; a tribunal without jurisdiction must decline to act, and proceedings and orders made without jurisdiction are nullities.

Court orders

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  1. 1.An order of certiorari removing to the court and quashing the proceedings of Nairobi Rent Restriction Tribunal Case No. 636 of 2016 (Samuel Joel Kibe and Antony Macharia vs. Charles Macharia Mugo).
  2. 2.An order of prohibition prohibiting the respondent from hearing and determining Rent Restriction Tribunal Case No. 636 of 2016.
  3. 3.The orders shall not release the applicant from his obligations as a tenant; the 1st interested party is at liberty to institute proceedings against the applicant in a court of competent jurisdiction.
  4. 4.Each party shall bear its own costs.

Authorities

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Legislation

  • Rent Restriction Act, Chapter 296 Laws of KenyaSection 2(1)(c)
  • Rent Restriction Act, Chapter 296 Laws of KenyaSection 3(1)
  • Environment and Land Court Act, 2011Section 13(7)(b)

Cases cited (1)

  • Desai v. Warsama
    [1967] E.A 351
Jurisdiction invoked
Section 13(7)(b) of the 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, "Republic v Chairman Rent Restriction Tribunal; Samuel Joel Kibe & another (Interested Parties) Ex-parte Charles Macharia Mugo [2019] KEELC 951 (KLR)", Case Analysis (2019). Judicial Review application arising from Notice of Motion dated 24th October, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/951/eng@2019-11-07

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