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ELCPartially AllowedJudicial Review Motion dated 13/3/2018· [2020] KEELC 3711 (KLR)

Republic v Chairman Business Premises Rent Tribunal;Audio Corner Limited (Interested Part) Ex parte Thande Holdings Limited [2020] KEELC 3711 (KLR)

High Court of Kenya
4 February 2020
BEB M Eboso
2,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that once a rent tribunal grants a landlord possession and ends a tenancy, it cannot later issue orders over the same premises.

What this practically means

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Executive summary

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This was a judicial review motion by Thande Holdings Limited, a landlord, challenging orders of the Chairperson of the Business Premises Rent Tribunal (Hon Mbichi Mboroki) made on 31/8/2017, 4/9/2017 and 6/10/2017 in BPRT (Nairobi) Case No 301 of 2017 and No 619 of 2017, which maintained a status quo over Shop No GF6 on LR 209/2421, Luthuli Avenue, Nairobi. The applicant leased two shops to Audio Corner Limited. On 22/8/2017 the Tribunal granted the applicant vacant possession of Shop GF6 and allowed distress for rent; the applicant then leased the premises to a new tenant. The Tribunal nonetheless issued and extended a status quo order in the parallel case. The applicant sought certiorari and setting aside of the impugned orders, arguing the tenancy had ceased and the Tribunal lacked jurisdiction. The Attorney General supported this position; the interested party contended it remained a tenant of a controlled tenancy terminable only by notice under Section 4(2), and that the Tribunal had jurisdiction to grant injunctive orders. Eboso J framed three issues: jurisdiction to issue the status quo orders, jurisdiction to issue injunctive orders, and costs. The court held that the Tribunal's order of 22/8/2017 terminated the tenancy, so the subsequent status quo orders were issued without jurisdiction; the Tribunal can issue injunctions only where properly seized of a dispute. Certiorari issued quashing the three impugned orders, with each party bearing its own costs.

Key legal issues

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01

Whether the Tribunal had jurisdiction to issue the status quo orders after granting vacant possession

Holding

Having terminated the tenancy and granted possession on 22/8/2017, the Tribunal lacked jurisdiction to issue the subsequent status quo orders without first staying or setting aside the 22/8/2017 order.

Reasoning

The Tribunal's order of 22/8/2017 granted the landlord possession of Shop GF6, ending the tenancy relationship. A Rent Inspector's report confirmed a new tenant in possession. The Tribunal exercises jurisdiction over subsisting controlled tenancies only; once the tenancy ceased by its own order, it could not issue further orders unless that order was first stayed or set aside. It was settled law that a court or tribunal without jurisdiction must down its tools.

p. 3
02

Whether the Tribunal has jurisdiction to issue injunctive orders

Holding

Yes, the Tribunal can issue injunctive or conservatory orders where properly seized of a dispute within its jurisdiction, per the Court of Appeal in John Mugo Ngunga v Margaret M Murangi.

Reasoning

The Court of Appeal had held that the Tribunal's jurisdiction to issue injunctions is provided for by the Act. However, in the present case the tenancy had ceased as at 22/8/2017, so this jurisdiction could not be invoked to sustain the impugned orders.

p. 3

Legal principles established

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  • The Business Premises Rent Tribunal exercises jurisdiction only in relation to subsisting controlled tenancies; where the tenancy has ceased pursuant to a court order, the Tribunal has no jurisdiction.
  • A tribunal cannot exercise jurisdiction over a dispute without first staying or setting aside its earlier order that terminated the tenancy.
  • The Business Premises Rent Tribunal has jurisdiction to grant injunctive or conservatory orders where properly seized of a dispute.

Court orders

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  1. 1.An order of certiorari quashing the orders of the Chairman of the BPRT made on 31/8/2017, 4/9/2017 and 6/10/2017 directing the closure of the exparte applicant's business premises known as Shop No GF6 situated on Land Reference Number 209/2421
  2. 2.Parties to bear their respective costs of the suit

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Sections 2, 4, 4(2), 6, 11, 12
  • Constitution of Kenya 2010Article 169(1)(a)
  • Civil Procedure ActSections 3A, 40

Cases cited (6)

  • R v Business Premises Rent Tribunal & another Ex parte Davies Motor Corporation Ltd
    [2013] eKLR
  • Moses N Gitonga & Another vs George Gatheka Kinyanjui & Another
    [2014] eKLR
  • Owner of Motor Vessel "Lilian S" v Caltex Oil Kenya Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • John Mugo Ngunga v Margaret M Murangi
    [2014] eKLR
  • Nyeri Civil Appeal No. 30 of 2013
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules over orders of the Business Premises Rent Tribunal

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, "Republic v Chairman Business Premises Rent Tribunal;Audio Corner Limited (Interested Part) Ex parte Thande Holdings Limited [2020] KEELC 3711 (KLR)", Case Analysis (2020). Judicial Review Motion dated 13/3/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3711/eng@2020-02-04

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