Republic v Chairperson, Rent Restriction Tribunal; Karega (Exparte); Simon & another (Interested Parties)
The bottom line
#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
#Executive summary
#Key legal issues
#Exhaustion of alternative remedies before judicial review
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.
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.
Whether the Tribunal exceeded its jurisdiction under Section 2(1)(c) of the Rent Restrictions Act
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.
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.
Duty of a tribunal to determine jurisdiction as a threshold issue
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.
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.
Legal principles established
#- 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
#- 1.The application dated 29th September 2022 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.