Republic v Douglas Kipkemoi & 3 others Ex parte Samuel Seroney t/a Kimsite Park Hotel [2021] KEELC 2748 (KLR)
The bottom line
#A tenant lost his bid to overturn a rent tribunal decision because judicial review targets decision-makers, not private landlords or rent disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review orders can issue against private citizens (the landlord respondents)
No. The 1st and 2nd respondents are private landlords who do not exercise administrative authority or perform judicial/quasi-judicial functions, so certiorari and prohibition cannot issue against them.
The court applied Article 47(1) of the Constitution and section 3 of the Fair Administrative Action Act, 2015, which extends judicial review to state and non-state agencies exercising administrative authority or quasi-judicial functions or whose actions affect legal rights. The landlords satisfied none of these criteria, their engagement with the applicant being purely a private landlord-tenant affair, and no duty was demonstrated warranting judicial review against them.
Whether the High Court in judicial review can determine merits-based claims such as refund of excess rent
No. Such claims belong in an appeal or ordinary civil suit; judicial review examines the decision-making process only.
Relying on the Sanitam Services and Municipal Council of Mombasa authorities, the court held that Order 53 is not an appellate forum. The applicant's grievance that he was not served and overpaid rent concerned the merits and contested facts; his remedy was an appeal or stay of execution before the Tribunal's decision, not judicial review. No orders had been sought against the Tribunal itself.
Whether certiorari and prohibition could be used to stop enforcement of the Tribunal's decision
No. Certiorari quashes a decision and must be grounded against the decision-maker; prohibition prevents a decision being made, not its enforcement.
Relying on the Kenya National Examination Council v Republic ex parte Geoffrey Gathenii Njoroge decision, the court accepted that only certiorari can undo an existing decision and prohibition is powerless against a decision already made. The applicant sought certiorari against the enforcing parties rather than the Tribunal, had not sought to quash the Tribunal's decision, and no relief was directed at the 3rd respondent.
Legal principles established
#- Judicial review remedies under section 3 of the Fair Administrative Action Act can apply to non-state actors whose action, omission or decision affects legal rights or interests, but cannot issue against private citizens who exercise no administrative authority and perform no judicial or quasi-judicial function.
- Judicial review is concerned with the decision-making process, not the merits of the decision.
- Only certiorari can quash a decision already made, and prohibition cannot issue against a decision already made.
Court orders
#- 1.The application is dismissed with costs to the respondents
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules; Article 47(1) of the Constitution; Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Douglas Kipkemoi & 3 others Ex parte Samuel Seroney t/a Kimsite Park Hotel [2021] KEELC 2748 (KLR)", Case Analysis (2021). Judicial Review application (Notice of Motion dated 8th July, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2748/eng@2021-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.