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ELCPartially AllowedApplication dated 2nd December 2021 in Constitutional Petition No. E10 of 2020· [2022] KEELC 1333 (KLR)

Suleyman Bittokk Abdhi t/a Azhar Progressive High School & 40 others v Ali Salim Karama Makawi Salim Karama [2022] KEELC 1333 (KLR)

Environment and Land Court
23 February 2022
2,476 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a rent dispute dressed up as a constitutional petition, confirming rent matters must go to the Rent Tribunal first.

What this practically means

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Executive summary

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The Defendants/Applicants, registered owners and landlord of Plot No. 9129/1/MN, applied under Section 3A of the Civil Procedure Act and Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules to strike out Constitutional Petition No. E10 of 2020 filed by the Plaintiffs/Respondents on 16th November 2020. They argued that the petition did not meet the threshold of a constitutional petition since the dispute concerned rent arrears of Kshs. 605,000/= under a controlled tenancy; that the 3rd and 4th Petitioners were minors without capacity; that the matter was sub judice before the Business Premises Rent Tribunal (Reference No. 274 of 2020) and Civil Suit No. E162 of 2020; and that the court lacked jurisdiction. The Respondents countered that the ELC has unlimited original jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act; that they filed in this Court because ELRC Petition No. 100 of 2020 had suspended the Tribunal's operations; that the applicants were estopped from challenging jurisdiction after participating in the suit; and that the lower court suit had been withdrawn. The court held that the petition failed the Anarita Karimi Njeru precision threshold, as no constitutional violation was demonstrated, the real dispute being rent arrears, and that the Tribunal reference rendered the suit sub judice, the statutory remedy having to be pursued first. The application was allowed and the petition struck out with costs, as recorded. Delivered at Mombasa on 23rd February 2022 by N.A. Matheka, J.

Key legal issues

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01

Whether the petition met the constitutional litigation threshold

Holding

It did not; the petition pleaded constitutional provisions without demonstrating any violation of rights, the real dispute being rent arrears

Reasoning

Applying Anarita Karimi Njeru and Mumo Matemu, a petitioner must plead with precision the Articles violated and particularise the manner and extent of the violation, supported by evidence. On perusal of the pleadings, evidence and submissions, the Petitioner pleaded constitutional provisions but did not demonstrate to the required standard how individual rights were violated, infringed or threatened. The underlying issue was rent arrears, an ordinary civil dispute not suited to constitutional litigation.

p. 3
02

Whether the suit was sub judice given the pending Business Premises Rent Tribunal reference

Holding

Yes; the Petitioner had filed Reference No. 274 of 2020 at the Tribunal over the same subject matter and should have pursued that remedy to appeal stage

Reasoning

The Petitioner filed a reference before the Business Premises Rent Tribunal on 10th November 2020 over the same subject matter. Under the applicable statutory scheme, the Tribunal handles controlled tenancies and appeals lie to the Environment and Land Court. The court rejected the explanation that the Tribunal's operations had been suspended pursuant to orders in ELRC Petition No. 100 of 2020, finding the Petitioner should not have filed this matter until the Tribunal process reached the appeal stage.

p. 3
03

Jurisdiction of the ELC over the controlled tenancy dispute

Holding

The dispute being a controlled tenancy concerning rent arrears, the Tribunal, not this Court at first instance, had the mandate

Reasoning

The court examined Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act conferring jurisdiction over land and environment disputes, including rents. However, the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act vests jurisdiction over controlled tenancies in the Business Premises Rent Tribunal, with appeals lying to the ELC. Since the subject matter was a controlled tenancy with rent arrears of Kshs. 605,000/=, the statutory remedy lay before the Tribunal first.

p. 3
04

Estoppel from attacking jurisdiction late

Holding

Counsel for the respondents argued the applicants were estopped for having participated without raising jurisdiction, but the court's determination rested on sub judice and the petition's failure of the constitutional threshold

Reasoning

The respondents submitted that the defendants acknowledged the court's jurisdiction by filing responses and several applications without objection, and should have raised a preliminary objection under Order 2 Rule 9 before the first inter-party hearing. The court did not ground its decision on estoppel, instead striking out the petition on the grounds that it failed the constitutional petition threshold and was sub judice before the Tribunal.

p. 2

Legal principles established

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  • Where there exists an alternative statutory remedy, it is desirable that such statutory remedy be pursued first
  • Constitutional violations must be pleaded with reasonable precision, enumerating the Articles violated and particularising the manner of violation
  • Courts must guard against ordinary disputes being clothed in constitutional petitions

Court orders

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  1. 1.The Petition dated 16th November 2020 and filed on 16th November 2020 is struck out
  2. 2.Costs of the application awarded as stated in the judgment ('with costs to the respondents' as recorded)

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 2 Rule 15; Order 51 Rule 1; Order 2 Rule 9; Order 1 Rule 8(1); Order 25 Rule 9
  • Constitution of KenyaArticle 162(2)(b); Articles 42, 69 and 70; Articles 1, 2, 3, 4, 10, 19, 20 and 73
  • Environment and Land Court Act, No. 19 of 2011Section 13(1), 13(2), 13(3), 13(4), 13(7)(a)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 15
  • Business Premises Rent Tribunal Actnull

Cases cited (5)

  • Bernard Murage vs Fineserve Africa Ltd & 3 others
    (2015) eKLR
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR 1272
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others
    (2013) eKLR
  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637
  • Dr. Rev. Timothy Njoya vs The Hon. Attorney General and Kenya Review Authority
    HC Constitutional and Human Rights Division Petition No. 479 of 2013
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Suleyman Bittokk Abdhi t/a Azhar Progressive High School & 40 others v Ali Salim Karama Makawi Salim Karama [2022] KEELC 1333 (KLR)", Case Analysis (2022). Application dated 2nd December 2021 in Constitutional Petition No. E10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1333/eng@2022-02-23

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