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ELCDismissedELC JR No. 47 of 2017· [2019] KEELC 3764 (KLR)

Adere & Company Advocates v Business Premises Rent Tribunal; Karuna Properties Ltd(Interested Party) [2019] KEELC 3764 (KLR)

High Court of Kenya, Environment & Land Court
27 March 2019
1,932 words in judgment
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The bottom line

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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

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Executive summary

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Adere & Company Advocates, a firm of advocates leasing offices on Standard Street, Nairobi, sought judicial review orders of certiorari to quash part of a Business Premises Rent Tribunal ruling of 2nd November, 2012 in Tribunal Case No. 869 of 2010, in which the Tribunal held that outstanding service charge and City Council rates were rent payable to its landlord, Karuna Properties Ltd. The applicant argued that the Tribunal lacked jurisdiction to determine the terms of the tenancy, since a complaint under Section 12(4) of Cap 301 presumes agreed and undisputed terms, and that no appeal lay against a decision arising from a complaint. The Respondent Tribunal and the Interested Party opposed, contending that judicial review addresses process rather than merits and that the Chairperson had jurisdiction. The court framed two issues: jurisdiction and whether certiorari should issue. It held that what was before the Tribunal was not a mere complaint but included an application for leave to levy distress for rent under Section 12(1)(h) and the applicant's own Section 6(1) application, which the Chairperson properly heard together; jurisdiction therefore existed. Applying the principle that judicial review concerns process, not merits, the court found the hearing fair and the decision free of illegality, irrationality and procedural impropriety; complaints about findings on rent and service charge belonged on appeal. In any event, the applicant participated without objecting to jurisdiction (waiver and acquiescence) and filed its judicial review application six months after the ruling without explanation (laches). The Notice of Motion dated 10th June, 2013 was dismissed with costs to the Respondent and the Interested Party.

Key legal issues

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01

Whether the Tribunal Chairperson had jurisdiction over the complaint in Tribunal Case No. 869 of 2010

Holding

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.

Reasoning

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.

p. 2
02

Whether the Tribunal's ruling of 2nd November, 2012 should be quashed by certiorari

Holding

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.

Reasoning

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.

p. 3
03

Whether delay, waiver and acquiescence disentitled the applicant from the discretionary remedy

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the Ex-parte Applicant's Notice of Motion dated 10th June, 2013
  2. 2.Costs of the application to the Respondent and the Interested Party

Authorities

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Legislation

  • Landlord & Tenant (Shops Hotels & Catering Establishments) ActSection 6(1)
  • Landlord & Tenant (Shops Hotels & Catering Establishments) ActSection 12(1)(h)
  • Landlord & Tenant (Shops Hotels & Catering Establishments) ActSection 12(4)

Cases cited (3)

  • Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Pastoli Vs Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Re Hebtulla Properties Ltd
    [1979-1980] 1 KLR 1197
Jurisdiction invoked
Judicial review jurisdiction of the High Court (order of certiorari) under Cap 301 framework and fair-hearing grounds

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, "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.