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ELCDismissedJudicial Review 6 of 2022· [2023] KEELC 17275 (KLR)

Republic v Chairperson, Rent Restriction Tribunal; Karega (Exparte); Simon & another (Interested Parties)

Environment and Land Court of Kenya
9 May 2023
4,695 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa court dismissed a landlord's attempt to bypass the Rent Restriction Tribunal, confirming Kenyan parties must exhaust tribunal remedies before seeking judicial review.

What this practically means

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Executive summary

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The ex parte Applicant, landlord of two residential premises in Bamburi, Mombasa, sought certiorari to quash orders of the Rent Restriction Tribunal's Deputy Chairperson (B. W. Mathenge) dated April 27, 2022 in Mombasa Rent Restriction Case No. 45 of 2022, and prohibition against further Tribunal proceedings in that case and in Case No. 51 of 2021. He argued that both Interested Parties had pleaded agreed monthly rents (Kshs 13,000 and Kshs 18,000) exceeding the statutory maximum under Section 2(1)(c) of the Rent Restrictions Act, so the Tribunal acted ultra vires in issuing interlocutory orders, including injunctions halting distress for rent, and in failing to prioritise his preliminary objection on jurisdiction. The Respondent countered that the Standard Rent of the premises had never been assessed, so the premises were not exempted from the Act; that the jurisdictional question turned on unresolved facts; and that judicial review was premature as a remedy of last resort, the Applicant having available remedies including applying to set aside the ex parte orders. The court, guided by the settled principles that judicial review examines process rather than merits and that jurisdiction is a threshold issue, held that whether the premises attracted Standard Rent was a factual determination for the Tribunal. It further held that under Section 9(2) of the Fair Administrative Action Act the Applicant failed to discharge the onus of justifying exemption from exhausting available remedies. The application was dismissed with costs.

Key legal issues

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01

Exhaustion of alternative remedies before judicial review

Holding

The proceedings were prematurely instituted because the Applicant had available remedies before the Tribunal, including applying to set aside the ex parte orders and having the jurisdictional issue determined at the inter partes hearing.

Reasoning

Section 9(2) of the Fair Administrative Action Act bars review unless internal mechanisms and other remedies are exhausted, subject to exceptional circumstances under subsection (4). The onus lay on the Applicant to justify exemption. Ex parte orders are provisional and can be set aside at the inter partes hearing; the Applicant did not show why it should be exempted from that route.

p. 7
02

Whether the Tribunal exceeded its jurisdiction under Section 2(1)(c) of the Rent Restrictions Act

Holding

The question whether the premises attracted Standard Rent, and hence fell outside the Tribunal's jurisdiction, was a factual determination for the Tribunal itself; the review court could not make that finding of fact.

Reasoning

Relying on the Davie Motor Corporation case, the court held that whether premises are standardised is a matter of fact whose finding is a prerequisite to determining jurisdiction. Since the Standard Rent had not been assessed, the Tribunal could not be said to lack jurisdiction, and judicial review could not resolve the contested factual versions.

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Duty of a tribunal to determine jurisdiction as a threshold issue

Holding

The Tribunal ought to have determined the jurisdictional question as soon as it was raised, but the failure did not justify judicial review where alternative remedies remained.

Reasoning

Citing the Joey/Barbara and Steve B case, the court affirmed that jurisdiction is everything and must be decided forthwith once raised. The Tribunal should have prioritised the preliminary objection on jurisdiction, but the Applicant still had to pursue that objection before the Tribunal rather than bypass it via judicial review.

p. 6

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits, and a review court cannot act as an appellate court over the decision-maker.
  • A question of jurisdiction is a threshold issue that must be determined forthwith by the tribunal seized of the matter once raised.
  • Under Section 9(2) of the Fair Administrative Action Act, a court shall not review an administrative action unless internal mechanisms and other available remedies are first exhausted, save in exceptional circumstances.
  • Where a judicial review application seeks determination of contested matters of fact, the court lacks jurisdiction and will leave the parties to ventilate the merits in ordinary civil suits.

Court orders

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  1. 1.The application dated 29th September 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 53 Rule 3
  • Law Reform Act, Chapter 26Sections 8 and 9
  • Environment & Land Court Act, Act No. 19 of 2011Section 13(5)
  • Fair Administrative Actions Act, No. 4 of 2015Sections 7, 8, 9, 10 & 11 (esp. 9(2), (3), (4))
  • Rent Restrictions ActSections 2(1)(c), 3, 5(1)(a)
  • Distress for Rent ActSections 3 & 5

Cases cited (11)

  • Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007 [2002] eKLR
    [2002] eKLR

    Judicial review concerns the process leading to the decision, not the merits; the court is not an appeal court over the decider.

  • Associated Provincial Picture Houses, Ltd. vs Wednesbury Corporation
    [1947] 2 All E.R 680

    Exceptional circumstances in which a court may consider the merits of a decision.

  • Republic v Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited
    [2013] eKLR

    Purpose of judicial review remedies is fair treatment, not substituting the court's opinion for the administrative body's.

  • Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & another
    [2014] eKLR

    Judicial review cannot determine contested matters of fact; parties must ventilate merits in ordinary civil suits.

  • Commissioner of Lands v Kunste Hotel Limited
    [1997] eKLR (E & L) 1

    Judicial review is concerned with the decision-making process, not private rights or merits.

  • Republic v Inland Revenue Commissioner Ex Parte Opman International
    1986 1 ALL E.R 328

    Judicial review is a procedure of last resort available where alternative procedures do not achieve just resolution.

  • Speaker of National Assembly v Karume
    C.A Civil Application No. 92 of 1992 (2008 1 K.L.R 426)

    Where there is a clear procedure to address a grievance, it should be followed.

  • Bluesea Shopping Mall Limited vs City Council of Nairobi & Others
    C.A Civil Appeal No. 129 of 2013 (Nairobi)

    Courts have discretion to withhold judicial review remedies, to be exercised very sparingly.

  • Owners and Masters of The Motor Vessel "Joey" v Owners and Masters of The Motor Tugs "Barbara" and "Steve B"
    [2008] 1 EA 367

    Jurisdiction is a threshold issue that must be determined forthwith once raised.

  • Republic v Business Premises Rent Tribunal & Another ex parte The Davie Motor Corporation Limited
    [2013] eKLR

    Disputed factual issues prerequisite to jurisdiction are for the tribunal, not the review court.

  • Republic v Registrar of Societies & 3 others ex parte Lydia Cherubet & 2 others
    Miscellaneous Civil Application 170 of 2016

    Decrying use of judicial review to obtain merits determinations.

Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26); Order 53 Rule 3 of the Civil Procedure Rules 2010; Section 13(5) 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, "Republic v Chairperson, Rent Restriction Tribunal; Karega (Exparte); Simon & another (Interested Parties)", Case Analysis (2023). Judicial Review 6 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17275/eng@2023-05-09

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