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ELCAllowedELC Judicial Review No. 46 of 2018· [2019] KEELC 3081 (KLR)

Republic v Deputy Chairman Rent Restriction Tribunal; Butrus Juma (Interested Party) Ex Parte Joseph Kagwatha [2019] KEELC 3081 (KLR)

Environment and Land Court
9 May 2019
LKL. Komingoi
1,506 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Rent Restriction Tribunal cannot handle cases where rent exceeds KES 2,500 monthly, and any orders it issues in such cases are void.

What this practically means

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Executive summary

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The ex parte applicant, a caretaker of premises let to the interested party Butrus Juma, moved the Court by notice of motion dated 6th August 2018 seeking certiorari to quash ex parte orders issued by the Deputy Chairman of the Rent Restriction Tribunal on 17th May 2018 in Rent Restriction Case No. 619 of 2018, and prohibition against further proceedings before the Tribunal. The orders had been granted on the interested party's application for return of his goods, without hearing the ex parte applicant, leading to his arrest and detention. The ex parte applicant argued that the Tribunal lacked pecuniary jurisdiction since the agreed monthly rent of KES 25,000 (per the tenancy agreement) exceeded the KES 2,500 limit in section 2(1) of the Rent Restriction Act, and that the rent could not be assessed under section 5(1)(a) because it had already been agreed. The respondent filed grounds of opposition; the interested party did not participate in submissions. The court framed two issues: jurisdiction of the Tribunal and whether the orders sought should issue. Relying on the Ezekiel Machogu and Gathenji Njoroge authorities, the court held the Tribunal lacked jurisdiction, rendering the orders ultra vires and a nullity. The notice of motion was allowed: certiorari quashed the 17th May 2018 orders, prohibition barred the Tribunal from proceeding with Case No. 619 of 2018, and costs were awarded to the ex parte applicant, borne by the interested party.

Key legal issues

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01

Pecuniary jurisdiction of the Rent Restriction Tribunal

Holding

The Tribunal had no jurisdiction because the rent was KES 25,000 per month, far exceeding the KES 2,500 statutory limit, and the agreed rent could not be reassessed under section 5(1)(a)

Reasoning

Section 2(1) of the Rent Restriction Act applies only to dwelling houses with a standard rent not exceeding KES 2,500 per month. The tenancy agreement (JK2) showed rent of KES 25,000. Although section 5(1)(a) empowers the Tribunal to assess standard rent, that power was unavailable because rent was already agreed by landlord and tenant, so the Tribunal could not appropriate jurisdiction.

p. 3
02

Effect of orders made without jurisdiction and without hearing

Holding

The ex parte orders of 17th May 2018 were ultra vires the Act and a nullity, warranting certiorari

Reasoning

The orders were issued ex parte without hearing the ex parte applicant, contrary to fair administrative action and natural justice, and by a Tribunal without jurisdiction. Citing K NEC v Republic ex parte Gathenji, certiorari lies where a decision is made without jurisdiction. The orders were consequently quashed and the Tribunal prohibited from further proceedings.

p. 3

Legal principles established

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  • The Rent Restriction Tribunal lacks jurisdiction over tenancies where the agreed monthly rent exceeds KES 2,500
  • Certiorari will issue to quash a decision made without jurisdiction or in excess of jurisdiction or where rules of natural justice are not complied with

Court orders

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  1. 1.An order of certiorari issued to remove and bring before the court the orders of the Deputy Chairman of the Rent Restriction Tribunal issued on 17th May 2018, and the orders quashed
  2. 2.An order of prohibition issued prohibiting the Rent Restriction Tribunal from proceeding in any manner whatsoever with Rent Restriction Case No. 619 of 2018
  3. 3.Costs of the proceedings awarded to the ex parte applicant, to be borne by the interested party

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 22, 23(f), 24
  • Rent Restriction Act (Cap. 296)Section 2(1), Section 2(c), Section 5(1)(a)
  • Fair Administrative Action Act (2015)Section 4
  • Civil Procedure Rules (2010)Order 53, Order 53(3)

Cases cited (4)

  • Republic vs Chairman Rent Restriction Tribunal & Another Exparte Ezekiel Machogu & 3 others
    [2013] eKLR
  • Kenya National Examination Council vs Republic Exparte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No. 266 of 1996
  • Republic vs Electricity Commissioners ex-parte London Electricity Joint Committee Co.
    [1920] 1KB 171
  • Republic vs Chairman Rent Restriction Tribunal & 2 Others Ex-parte Agatha Njoki Mwangi
    [2015] eKLR
Jurisdiction invoked
Articles 22 and 23(f) of the Constitution of Kenya; Order 53 of the Civil Procedure Rules (2010); Section 2(c) of the Rent Restriction Act (Cap. 296)

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 Deputy Chairman Rent Restriction Tribunal; Butrus Juma (Interested Party) Ex Parte Joseph Kagwatha [2019] KEELC 3081 (KLR)", Case Analysis (2019). ELC Judicial Review No. 46 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3081/eng@2019-05-09

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