Republic v Business Rent Tribunal; Ligi Limited & another (Interested Parties); Unga Investment Limited (Exparte Applicant)
The bottom line
#Kenya's Environment and Land Court confirmed that unwritten business tenancies are controlled tenancies, so landlords cannot evict shop tenants with a simple 30-day notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the tenancy between the Ex-parte Applicant and the 1st Interested Party was a controlled tenancy within the jurisdiction of the Business Premises Rent Tribunal
Yes. The premises were used for business (a shop), the tenancy was not reduced into writing after the written lease lapsed, making it a controlled tenancy under Section 2 of Cap 301, and the Tribunal had jurisdiction.
The written five-year lease lapsed in November 2007 and the parties continued on an unwritten mutual arrangement. The activities on the demised premises fell within the definition of a shop. An unwritten business tenancy is a periodic tenancy under Section 57(2) of the Land Act but also a controlled tenancy under Cap 301, terminable only per Section 4(2) of Cap 301. The Ex-parte Applicant's 30-day notice under the Land Act contravened Section 4(2), entitling the 1st Interested Party to approach the Tribunal.
Whether the Ex-parte Applicant laid a basis for the grant of Certiorari and Prohibition
No. The reliefs would require merit review of heavily contested facts, which judicial review does not permit.
Relying on the Supreme Court's decision in Saisi v DPP, the court held that merit analysis in judicial review is limited to uncontroverted evidence; controverted evidence is for the decision-making body or a trial. The Ex-parte Applicant herself conceded the existence of a factual controversy over the nature of the activities and the unwritten tenancy, so the judicial review reliefs could not issue.
Legal principles established
#- A business tenancy not reduced into writing, though a periodic tenancy under Section 57(2) of the Land Act, 2012, is a controlled tenancy under Cap 301 and must be terminated in accordance with Section 4 of that Act.
- The Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301 is not overridden by the later Land Act, 2012 in matters of termination of controlled tenancies.
- Judicial review courts may not undertake exhaustive merit review of controverted facts; merit analysis is limited to uncontroverted evidence.
Court orders
#- 1.The Notice of Motion Application dated the 11th January 2023 be and is hereby Dismissed
- 2.Costs of the application to the 1st and 2nd Interested Parties, to be agreed upon and in default taxed by the Deputy Registrar
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (orders of Certiorari and Prohibition) under the Fair Administrative Actions Act, 2015 and Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Business Rent Tribunal; Ligi Limited & another (Interested Parties); Unga Investment Limited (Exparte Applicant)", Case Analysis (2023). Miscellaneous Application E276 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17694/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.