Adere & Company Advocates v Business Premises Rent Tribunal; Karuna Properties Ltd(Interested Party) [2019] KEELC 3764 (KLR)
The bottom line
#The High Court dismissed a bid to quash a rent tribunal ruling, confirming tribunals act fairly and delay plus silence can cost you your challenge.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal Chairperson had jurisdiction over the complaint in Tribunal Case No. 869 of 2010
The Chairperson had jurisdiction because what was before the Tribunal was not merely a complaint under Section 12(4) but also an application for leave to levy distress for rent under Section 12(1)(h), which the two cases heard together.
The Tribunal had been moved both under Section 12(1)(h) and (4) of Cap 301 by the landlord for leave to levy distress and under Section 6(1) by the applicant for leave to file a reference. The two matters were directed to be heard together. Leave to levy distress for rent necessarily required inquiry into how the alleged arrears arose, so the complaint could not be isolated from the distress application. The Chairperson therefore had jurisdiction to make the orders she made.
Whether the Tribunal's ruling of 2nd November, 2012 should be quashed by certiorari
Certiorari was refused: the process was fair, the Chairperson had jurisdiction, and the decision bore none of the vices of illegality, irrationality or procedural impropriety.
Judicial review examines process, not merits. Both parties were heard, and since jurisdiction existed there was no unfairness or breach of natural justice. The applicant's real quarrel was with the Tribunal's findings on what constitutes rent and service charge, a matter addressable only on appeal, not in judicial review. The decision lacked any of the characteristics described in the Pastoli case.
Whether delay, waiver and acquiescence disentitled the applicant from the discretionary remedy
Even if the Tribunal had lacked jurisdiction, the application would have been refused because of the applicant's delay and continued participation without objection to jurisdiction.
The applicant participated in the Tribunal proceedings after its Section 6(1) application was disposed of without raising any objection to jurisdiction, amounting to waiver and acquiescence. Proceedings for judicial review were commenced on 2nd May, 2013, six months after the ruling of 2nd November, 2012, with no reason given for the delay, the Tribunal proceedings having been ready by March 2013. Laches and the applicant's conduct disentitled it from certiorari.
Legal principles established
#- Judicial review is concerned with the process leading to a decision, not its merits.
- A judicial review applicant must show illegality, irrationality or procedural impropriety to succeed.
- Judicial review is a discretionary remedy that may be denied for waiver, acquiescence, laches or the applicant's conduct.
Court orders
#- 1.Dismissal of the Ex-parte Applicant's Notice of Motion dated 10th June, 2013
- 2.Costs of the application to the Respondent and the Interested Party
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (order of certiorari) under Cap 301 framework and fair-hearing grounds
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adere & Company Advocates v Business Premises Rent Tribunal; Karuna Properties Ltd(Interested Party) [2019] KEELC 3764 (KLR)", Case Analysis (2019). ELC JR No. 47 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3764/eng@2019-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.