Wakimiri v The Business Premises Rent Tribunal & 2 others (Environment and Land Judicial Review Appeal 7 of 2020) [2022] KEELC 2667 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to entertain judicial review against a Business Premises Rent Tribunal order
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.
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.
Whether the Tribunal's orders of 10/7/2020 were issued in defiance of the ELRC restraining orders of 1/7/2020
The Tribunal orders were made in contravention of the restraining orders of 1/7/2020 and were ultra vires, null and void.
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.
Whether a decision of an improperly constituted Tribunal can stand
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.
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.
Legal principles established
#- 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
#- 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.The costs of the Application to be borne by the Respondents in favour of the Applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.