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ELCDismissedRent Restriction Case No. 97 of 2019 (subject matter); Judicial Review application filed 28 February 2020· [2020] KEELC 789 (KLR)

James Kirugi v Chairman, Rent Restriction Tribunal & another [2020] KEELC 789 (KLR)

Environment and Land Court of Kenya (exercising judicial review jurisdiction)
7 October 2020
3,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A tenant lost his bid to overturn a Rent Restriction Tribunal decision because he never used the review and appeal routes the law already provides.

What this practically means

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Executive summary

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The ex parte applicant, James Kirugi, sought leave and thereafter filed a substantive motion for an order of prohibition against the Chairman of the Rent Restriction Tribunal and an order of certiorari quashing the Tribunal's decision of 3 February 2020 in Rent Restriction Case No. 97 of 2019, in which Danion Limited, his landlord, had obtained judgment against him for KShs. 170,315/= in accumulated rent plus vacant possession. His core contention was that the Tribunal lacked jurisdiction because the agreed monthly rent was KShs. 15,000/=, beyond the Act's threshold. Both respondents opposed, arguing he had not exhausted the statutory remedies of review before the Tribunal or appeal to the Environment and Land Court, and that no standard rent assessment had been conducted. The court first held that under Section 9(2) and (3) of the Fair Administrative Actions Act and Sections 5(1)(m) and 8(2) of the Rent Restriction Act, the applicant was obliged to exhaust the internal review and appeal mechanisms and had shown no exceptional circumstances; the application was abusive and would have been denied leave. The court nonetheless considered the merits. It held that 'standard rent' under the Act is a calculated figure anchored on letting as at 1 January 1981, not the actual monthly rent; the actual rent of KShs. 15,000/= did not of itself demonstrate the standard rent exceeded KShs. 2,500/=. Having presented no evidence of the standard rent, and having failed to argue his preliminary objection before the Tribunal, the applicant failed to establish that the Tribunal acted without jurisdiction. The application was dismissed with costs to the respondents; the stay orders were vacated and the landlord was left free to execute the Tribunal's judgment.

Key legal issues

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01

Failure to exhaust statutory remedies

Holding

The application was an abuse of process because the applicant did not seek review under Section 5(1)(m) nor appeal under Section 8(2) of the Rent Restriction Act as required by Section 9(2) and (3) of the Fair Administrative Actions Act

Reasoning

The Rent Restriction Act provides an internal mechanism under Section 5(1)(m) for reopening or varying decisions, and a right of appeal to the Environment and Land Court under Section 8(2). Section 9(2) of the Fair Administrative Actions Act bars judicial review where such mechanisms are unexhausted. The applicant pursued neither and pointed to no exceptional circumstances, so the suit would have been struck out.

p. 3
02

Jurisdiction of the Rent Restriction Tribunal and the meaning of 'standard rent'

Holding

The Tribunal applies to dwelling-houses with a standard rent not exceeding KShs. 2,500/=, but standard rent is a calculated figure, not the actual rent; the applicant produced no evidence of the standard rent, so no jurisdictional defect was demonstrated

Reasoning

Section 2 of the Rent Restriction Act limits the Act to dwelling-houses whose standard rent does not exceed KShs. 2,500/=, but Section 3 defines standard rent by reference to letting as at 1 January 1981 or assessment based on cost of construction and land value. The actual rent of KShs. 15,000/= is not necessarily the standard rent. The applicant, having also failed to argue his preliminary objection before the Tribunal, offered no material on the standard rent.

p. 4

Legal principles established

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  • Parties must exhaust the remedies, including internal review and appeal mechanisms, provided in the statute upon which their case is founded before seeking judicial review, save in exceptional cases
  • The 'standard rent' under the Rent Restriction Act is not the actual rent payable and must be calculated; a party alleging the Tribunal lacked jurisdiction must prove what the standard rent is

Court orders

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  1. 1.The ex parte applicant's judicial review application is dismissed with costs to the respondents
  2. 2.The stay orders issued herein are vacated
  3. 3.The 2nd respondent is at liberty to execute the judgment of the Rent Restriction Tribunal

Authorities

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Legislation

  • Rent Restriction Act, Cap 296, Laws of KenyaSection 2
  • Rent Restriction Act, Cap 296, Laws of KenyaSection 3 (definition of standard rent)
  • Rent Restriction Act, Cap 296, Laws of KenyaSection 5(1)(a), 5(1)(m), 5(3), 5(7)
  • Rent Restriction Act, Cap 296, Laws of KenyaSection 8(1), 8(2), 8(3), 8(4)
  • Fair Administrative Actions ActSection 9(2) and (3)

Cases cited (6)

  • Administrator of the Estate of GK Kirima (deceased) vs Chairman Rent Restriction Tribunal Nairobi & Another
  • Rose Muthoni & Another (interested parties)
  • Republic vs Chairman Rent Restriction Tribunal & Another ex parte Ezekiel Machogu & 3 Others
    (2013) eKLR
  • Republic Vs Kenya Revenue Authority Commission Ex Parte Keycorp Real Advisory Limited
    (2019) eKLR
  • Republi vs Rent Restriction Tribunal & 2 Others Ex Parte Evans Nyahoro, Paul Kinuthia Kilundi
    JR 366 of 2017
  • Samson Chembe Vuko vs Nelson Kilumo & 4 Others
    (2014) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the Fair Administrative Actions Act, Section 9

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, "James Kirugi v Chairman, Rent Restriction Tribunal & another [2020] KEELC 789 (KLR)", Case Analysis (2020). Rent Restriction Case No. 97 of 2019 (subject matter); Judicial Review application filed 28 February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/789/eng@2020-10-07

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