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ELCDismissedChamber Summons Application dated 25th March 2020 (Judicial Review, Thika)· [2020] KEELC 1696 (KLR)

Seaway Holding Limited v Chairman of the Business Premises Rent Tribunal & another [2020] KEELC 1696 (KLR)

High Court of Kenya
16 July 2020
3,012 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a Chamber Summons application dated 25th March 2020 by Seaway Holdings Limited seeking leave to apply for judicial review orders of certiorari to quash and prohibition against further proceedings in Business Premises Rent Restriction Tribunal Case No. 275 of 2020 (Nairobi), and an order that leave operate as stay of the Tribunal's orders of 10th March 2020 compelling the applicant to unlock part of the 4th Floor of Zuri Centre for access by the 2nd Respondent. The applicant contended the Tribunal lacked jurisdiction because the tenancy was uncontrolled, being governed by a written lease for a term of five years and three months. The 2nd Respondent opposed, arguing the application was premature, the orders were interim ex parte orders, the dispute on controlled tenancy was for the Tribunal, and judicial review is a last resort. The Court applied the established leave-stage criteria: locus standi, a public-body decision-maker, and an arguable case. It found the applicant had sufficient interest and that the Tribunal is a public body, but held that determining whether the tenancy was controlled would require it to descend into the merits, which is not the function of a judicial review court. Section 12 of Cap 301 expressly empowers the Tribunal to determine whether a tenancy is controlled, and the matter had only been heard ex parte, so the decision was neither irrational nor unlawful. Leave was refused; the prayer for leave to operate as stay collapsed. The application was dismissed entirely with costs to the 2nd Respondent.

Key legal issues

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01

Whether the Tribunal lacked jurisdiction over an allegedly uncontrolled tenancy

Holding

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

Reasoning

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.

p. 4
02

Whether the applicant met the criteria for grant of leave to apply for judicial review

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Chamber Summons Application dated 25th March 2020 is dismissed entirely with costs to the 2nd Respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 2, Section 12(1)(a)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • R ...Vs... Kenyatta University Exparte Ochieng Orwa Dominic & 7 Others
    (2018) eKLR
  • Meixne & Another…Vs..AG
    (2005) 1KLR 189
  • Municipal Council of Mombasa…Vs…Republic Umoja Consultants Ltd
    Nairobi Civil Appeal No.185 of 2007(2002) eKLR
  • Republic …Vs.. Kenya Revenue Authority, Commissioner Ex parte Keycorp Real advisory Limited
    (2019) eKLR
  • Republic vs County Council of Kwale & Another Ex-parte Kondo & 57 others
Jurisdiction invoked
Judicial review (supervisory) jurisdiction of the High Court; leave stage under Order 53 of the Civil Procedure Rules

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, "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.