Seaway Holding Limited v Chairman of the Business Premises Rent Tribunal & another [2020] KEELC 1696 (KLR)
The bottom line
#The High Court refused to stop a rent tribunal case, confirming tribunals decide whether a tenancy is 'controlled' — landlords must argue that before the tribunal first.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal lacked jurisdiction over an allegedly uncontrolled tenancy
The Tribunal has jurisdiction under Section 12 of Cap 301 to determine whether or not a tenancy is controlled, so it must first be given the opportunity to make that determination; the decision complained of was neither irrational nor unlawful
The court noted there is a dispute whether the tenancy is controlled. Section 12(1)(a) of Cap 301 expressly empowers the Tribunal to determine whether any tenancy is a controlled tenancy. A judicial review court cannot determine that issue without venturing into the merits, which would amount to sitting on appeal over the Tribunal. Since the matter had only been heard ex parte, the Tribunal's jurisdiction at that stage was intact.
Whether the applicant met the criteria for grant of leave to apply for judicial review
Although the applicant had sufficient interest and the Tribunal is a public body, the applicant failed to show the decision was unlawful or irrational; leave was therefore refused
Applying the principles in R v Kenyatta University Ex-parte Ochieng Orwa Dominic, an applicant must show locus standi, that the decision was by a public body, and an arguable case with reasonable chance of success. The court found sufficient interest and public body elements satisfied but held that the dispute over the existence of a written lease and controlled tenancy status is a merits question the court cannot resolve on judicial review at the leave stage.
Legal principles established
#- Leave of court is a pre-requisite to making a substantive application for judicial review, and an applicant must show locus standi, that the decision was by a public body, and an arguable case with reasonable chance of success
- Judicial review concerns the decision-making process, not the merits of the decision
- The Business Premises Rent Restriction Tribunal has power under Section 12 of Cap 301 to determine whether or not a tenancy is a controlled tenancy
Court orders
#- 1.The Chamber Summons Application dated 25th March 2020 is dismissed entirely with costs to the 2nd Respondent
- Jurisdiction invoked
- Judicial review (supervisory) jurisdiction of the High Court; leave stage under Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seaway Holding Limited v Chairman of the Business Premises Rent Tribunal & another [2020] KEELC 1696 (KLR)", Case Analysis (2020). Chamber Summons Application dated 25th March 2020 (Judicial Review, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1696/eng@2020-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.