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ELCAllowedELC Judicial Review Case No. 7 of 2020 (Thika)· [2022] KEELC 2667 (KLR)

Wakimiri v The Business Premises Rent Tribunal & 2 others (Environment and Land Judicial Review Appeal 7 of 2020) [2022] KEELC 2667 (KLR)

Environment and Land Court
30 June 2022
3,534 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a Rent Tribunal's eviction orders because the Tribunal's members had been unconstitutionally appointed.

What this practically means

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Executive summary

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The Applicant, a tenant of business premises on Plot No. 135 Kiambu Town under a lease dated 21/8/2019, sought certiorari to quash proceedings and adverse orders of 10/7/2020 issued by the Business Premises Rent Tribunal in BPRT Case No. 609 of 2020 at the instance of his landlord, the 3rd Respondent. He contended the Tribunal acted in contempt of restraining orders issued on 1/7/2020 in Nbi ELRC Petition No. 100 of 2020 barring interested parties from assuming office. The 3rd Respondent raised a preliminary objection on jurisdiction, asserting the dispute was a landlord/tenant matter for the High Court and that any grievance against a Tribunal order lay in appeal to the ELC. The 1st Respondent maintained the restraining order was limited to assumption of office (which had already occurred on oath-taking on 30/6/2020) and was only served on 15/7/2020. The Court applied the Mukisa Biscuit principles, held it had jurisdiction under Article 162(2)(b) and Sections 13(2)(a), 13(4) and 13(7)(b) of the ELC Act to grant prerogative orders, and dismissed the objection. On the merits, the Court found the record showed service of the restraining order on the Tribunal's advocates on 2/7/2020, contradicting the 1st Respondent's claim, and noted the ELRC final judgment of 30/10/2020 declared the BPRT members' appointment unconstitutional and quashed Gazette Notice No. 4244. Following Noah Kibelenkenya, the Tribunal's orders were ultra vires and null and void. Certiorari issued quashing the entire proceedings and orders, with costs to the Applicant against the Respondents.

Key legal issues

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01

Jurisdiction of the ELC to entertain judicial review against a Business Premises Rent Tribunal order

Holding

The Court found it has jurisdiction, being empowered under Section 13(7)(b) of the Environment and Land Court Act to grant prerogative orders in disputes relating to land, and the preliminary objection failed.

Reasoning

The Court noted the suit is judicial review, a sui generis suit, and that Section 13 of the ELC Act confers original and appellate jurisdiction over land disputes including rents, contracts and interests in land, plus power to issue prerogative orders. The matter had also been transferred to the ELC by the High Court in Kiambu. The objection therefore failed.

p. 6
02

Whether the Tribunal's orders of 10/7/2020 were issued in defiance of the ELRC restraining orders of 1/7/2020

Holding

The Tribunal orders were made in contravention of the restraining orders of 1/7/2020 and were ultra vires, null and void.

Reasoning

The 1st Respondent's own affidavit conceded the orders barred it from conducting business, contradicting its claim that service occurred only on 15/7/2020; the record showed service on the Tribunal's advocates on 2/7/2020. The subsequent judgment in ELRC Petition 100 of 2020 declared the BPRT members' appointment unconstitutional and quashed Gazette Notice No. 4244, so the Tribunal was not legally constituted.

p. 7
03

Whether a decision of an improperly constituted Tribunal can stand

Holding

Adopting Noah Kibelenkenya v Simore Ololchurie, a decision of an improperly constituted Tribunal is null and void; the members had no power to assume office or issue eviction orders.

Reasoning

The ELRC final judgment of 30/10/2020 declared the appointment of the BPRT members unconstitutional and quashed the Gazette Notice appointing them. There being no stay of those orders, the Tribunal was far from legally constituted when it issued the orders of 10/7/2020, rendering those orders ultra vires and a proper subject of certiorari.

p. 7

Legal principles established

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  • The Environment and Land Court is empowered under Section 13(7)(b) of the Environment and Land Court Act to grant prerogative orders including certiorari in respect of Tribunal decisions concerning land.
  • A decision rendered by a Tribunal that is not properly constituted is null and void.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.

Court orders

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  1. 1.An order of certiorari quashing the entire proceedings in Business Premises Rent Tribunal Case No. 609 of 2020 (Nairobi) - Michael Kimani Njoroge vs Stephen Wakimiri alias Njenga together with the Order issued in that case on 10th July 2020
  2. 2.The costs of the Application to be borne by the Respondents in favour of the Applicant

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 15 (CAP 301)
  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 53
  • Gazette Notice No. 16268 of 2013 Practice Directions on Proceedings relating to the Environment and the use and occupation of, and Title to Landparas. 8 and 11
  • Gazette Notice No. 4244 of 2020

Cases cited (6)

  • Owners of Motor Vessel Lilian S vs Caltex Oil Kenya Ltd
    (1989) KLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] EA 696
  • Sanghani Investment Limited Vs Officer in charge Nairobi Remand and allocation prison
    (2007) 1 EA 354
  • Pastoli vs. Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • Municipal Council of Mombasa v Republic and Another
    2002 EKLR 223, CA No 185 of 2001
  • Noah Kibelenkenya v Simore Ololchurie & Anor
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13(2)(a), 13(4) and 13(7)(b) of the Environment and Land Court Act

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, "Wakimiri v The Business Premises Rent Tribunal & 2 others (Environment and Land Judicial Review Appeal 7 of 2020) [2022] KEELC 2667 (KLR)", Case Analysis (2022). ELC Judicial Review Case No. 7 of 2020 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2667/eng@2022-06-30

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