Francis Njoroge Boro Mungai v Middle East African Autospares Limited & another [2019] KEELC 1506 (KLR)
The bottom line
#Kenya's High Court stopped a rent tribunal from hearing a dispute over a 25-year lease because the tribunal only covers short-term tenancies.
What this practically means
#Executive summary
#Key legal issues
#Whether the Business Premises Rent Tribunal had jurisdiction over the dispute concerning the lease.
The Tribunal lacked jurisdiction because the lease was for 25 years and therefore was not a controlled tenancy under Cap 301.
Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act defines a controlled tenancy as one not reduced into writing or, if written, for a period not exceeding five years or containing termination provisions within five years. The lease in question was in writing for 25 years, so it fell outside the definition, and the Tribunal could not entertain disputes arising from it. The court so found and concluded the application had merit.
Whether an order of prohibition should issue against the Tribunal's Chairman.
Prohibition issued, being the appropriate remedy to stop contemplated proceedings in excess of jurisdiction.
Applying the Kenya National Examination Council exparte Gathenji parameters, prohibition looks to the future and forbids an inferior tribunal from continuing proceedings in excess of jurisdiction or in departure from the rules of natural justice. Since the Tribunal case remained pending and the Tribunal lacked jurisdiction, prohibition was efficacious to prevent it from proceeding further with Case No. 552 of 2014.
Legal principles established
#- A tenancy under a written lease for a period exceeding five years with no provision for termination within five years is not a controlled tenancy, and the Business Premises Rent Tribunal has no jurisdiction over disputes arising from it.
- Judicial review concerns the decision-making process, not the merits of the decision.
- Prohibition lies to prevent a tribunal from continuing proceedings in excess of jurisdiction, while only certiorari can quash a decision already made.
Court orders
#- 1.An order of prohibition is issued to prohibit the 2nd respondent from presiding over the proceedings or trial, taking evidence, issuing orders and/or determining Tribunal Case No. 552 of 2014.
- 2.Costs of the application to be borne by the 1st Respondent.
- Jurisdiction invoked
- Section 8(9) of the Law Reform Act, Chapter 26 Laws of Kenya and Order 53 rule 3 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Njoroge Boro Mungai v Middle East African Autospares Limited & another [2019] KEELC 1506 (KLR)", Case Analysis (2019). Judicial Review (Notice of Motion dated 29th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1506/eng@2019-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.