Republic v Mboroki; Westelco Limited (Exparte); Navdeep Singh Mehta T/A Kensun Enterprises (Interested Party) (Environment and Land Miscellaneous Application 114 of 2018) [2022] KEELC 2289 (KLR)
The bottom line
#A landlord who loses at Kenya's Business Premises Rent Tribunal must appeal, not file judicial review, because the court dismissed the attempt with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 12(4) of the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act barred an appeal, leaving judicial review as the only recourse
No - the dismissal of the preliminary objection was a determination, not a 'complaint' of a minor character, and was therefore appealable.
The court relied on Gatanga General Store and Re-Heptulla Proberties Ltd, holding that Section 12(4) 'complaints' cover only minor matters such as cutting off water or obstructing access. The jurisdictional ruling of 20.2.2015 was a determination on a contested question, attracting a right of appeal rather than exclusive judicial review.
Whether the judicial review application was an abuse of process as a disguised appeal
Yes - the applicant was aggrieved by the tribunal's decision and was pursuing pure grounds of appeal, which do not warrant certiorari absent illegality, irrationality, ultra vires or procedural impropriety.
Applying Mativo J in Ahmad v Kadhi Mombasa and the Municipal Council of Mombasa scope-of-review principle, the court found no flagrant abuse of legal principle or grave injustice. The same arguments on jurisdiction had already been determined by the tribunal; relitigating them seven years later simply because the applicant lost the main suit is a way of appealing the jurisdictional ruling.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision; mere grounds of appeal do not found judicial review relief.
- A determination on a preliminary objection is not a 'complaint' under Section 12(4) of Cap 301; an aggrieved party has a right of appeal against determinations.
Court orders
#- 1.The suit (Judicial Review application for certiorari) is dismissed
- 2.Costs awarded to the interested party
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court (orders of certiorari); leave granted 12.11.2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Mboroki; Westelco Limited (Exparte); Navdeep Singh Mehta T/A Kensun Enterprises (Interested Party) (Environment and Land Miscellaneous Application 114 of 2018) [2022] KEELC 2289 (KLR)", Case Analysis (2022). ELC Misc No. 114 of 2018 (Judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2289/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.