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ELCAllowedChamber Summons Application dated 16th October 2020 (Judicial Review)· [2021] KEELC 1650 (KLR)

Esther Victoria Wanjiku Mahoro v Mary Wambui Githinji & 3 others [2021] KEELC 1650 (KLR)

High Court of Kenya at Thika
8 October 2021
LGL. Gacheru
2,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's High Court quashed Rent Restriction Tribunal orders because the property's rent exceeded the Kshs. 2,500 cap that gives the Tribunal any legal power to hear a case.

What this practically means

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Executive summary

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The Ex Parte Applicant, Esther Victoria Wanjiku Mahuro, widow of the late Joseph Mahuro Maina, moved the Court by Chamber Summons dated 16th October 2020 seeking certiorari to quash an order of the Chairman of the Rent Restriction Tribunal dated 6th August 2020, prohibitory orders restraining the Respondents from implementing that order or collecting rents, and mandamus directing withdrawal of the order. She deposed that the 1st to 3rd Respondents had invoked Tribunal Case No. 1132 of 2020, resulting in an order that her agent remit rents from houses on L.R. Juja/Kalimoni 10/92 to the Tribunal; that the rents were her only livelihood; that a succession cause over her late husband's estate had not been filed; and that a related suit, CMCC No. 118 of 2020 at Muranga, was pending. She contended the Tribunal lacked jurisdiction because the monthly rents exceeded Kshs. 4,000, beyond the statutory ceiling, and that the property was not part of the estate. The Respondents did not oppose. The court applied Municipal Council of Mombasa v Republic, Pastoli v Kabale District Local Government and Kenya National Examination Council v Republic on the scope of judicial review, and followed Johakim Abayo v Mokua Damacline Nyamoita on the Tribunal's pecuniary jurisdiction. Holding that Section 2(1)(c) of the Rent Restriction Act excludes dwelling-houses with a standard rent above Kshs. 2,500 monthly, the court found the Tribunal acted ultra vires. The application was allowed entirely, with the Tribunal's orders quashed, the proceedings struck out, the Tribunal prohibited from proceeding, and costs to the Ex Parte Applicant.

Key legal issues

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01

Whether the Rent Restriction Tribunal acted ultra vires in issuing the orders of 6th August 2020

Holding

The Tribunal acted in excess of its pecuniary jurisdiction because the standard rent of the dwelling houses exceeded Kshs. 2,500 per month, exceeding the ceiling in Section 2(1) of the Rent Restriction Act; certiorari was therefore available.

Reasoning

The Applicant's uncontroverted evidence established that rents for the houses on L.R. Juja/Kalimoni 10/92 were Kshs. 4,000 and above per month. Section 2(1)(c) of the Rent Restriction Act excludes dwelling-houses with a standard rent exceeding Kshs. 2,500 monthly from the Tribunal's jurisdiction. Following Johakim Abayo v Mokua Damacline Nyamoita, the Tribunal must first ascertain standard rent before assuming jurisdiction. Having not done so and hearing a matter beyond its pecuniary limits, the Tribunal acted ultra vires and its orders were liable to be quashed.

p. 3
02

The proper scope of judicial review

Holding

Judicial review concerns the decision-making process, not the merits; an applicant must show illegality, irrationality or procedural impropriety, as established in the cited authorities.

Reasoning

Relying on Municipal Council of Mombasa v Republic & Umoja Consultants, the court reiterated that a review court is not a court of appeal over the decision-maker, examining only jurisdiction, fairness and relevant considerations. Pastoli v Kabale District Local Government frames the grounds as illegality, irrationality and procedural impropriety, while Kenya National Examination Council v Republic defines the remedial scope of certiorari, prohibition and mandamus. On these principles, the Tribunal's want of jurisdiction constituted illegality justifying relief.

p. 2

Legal principles established

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  • The Rent Restriction Tribunal lacks jurisdiction over dwelling-houses whose standard rent exceeds Kshs. 2,500 per month under Section 2(1) of the Rent Restriction Act; adjudicating such matters is ultra vires and the resulting orders must be quashed.
  • Uncontroverted evidence in judicial review proceedings must still meet the balance-of-probabilities standard.

Court orders

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  1. 1.Judicial Review Application allowed entirely
  2. 2.Order of certiorari to quash the orders of the Rent Restriction Tribunal dated 6th August 2020, the Tribunal having acted in excess of jurisdiction
  3. 3.Tribunal proceedings struck out
  4. 4.The 4th Respondent prohibited from proceeding with the matter
  5. 5.Costs to the Ex Parte Applicant

Authorities

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Legislation

  • Rent Restriction ActSection 2(1)
  • Cap 160 Laws of Kenyanot specified
  • Fair Administrative Action Actnot specified (referred to as 'Fair Administrative Act')

Cases cited (6)

  • Municipal Council of Mombasa v Republic, Umoja Consultants Ltd
    Nairobi Civil Appeal No.185 of 2007 (2002) eKLR
  • Pastoli v Kabale District Local Government Canal & Others
    (2008) 2 EA 300 at pages 300-304
  • Al-Mehidswi v Secretary of State for the Housing Department
    (1990) AC 876
  • Kenya National Examination Council v Republic Exparte Geoffrey Gathenji & 9 Others
    Nairobi Civil Appeal No.266 of 1996
  • Johakim Abayo v Mokua Damacline Nyamoita
    [2021] eKLR
  • Republic v Chairman Rent Restriction Tribunal; Samuel Joel Kibe & another (interested parties) Exparte Charles Macharia Mugo
    [2019] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court (orders of certiorari, prohibition and mandamus); Rent Restriction Act, Chapter 296 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Esther Victoria Wanjiku Mahoro v Mary Wambui Githinji & 3 others [2021] KEELC 1650 (KLR)", Case Analysis (2021). Chamber Summons Application dated 16th October 2020 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1650/eng@2021-10-08

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