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ELCDismissedMiscellaneous Application E276 of 2022· [2023] KEELC 17694 (KLR)

Republic v Business Rent Tribunal; Ligi Limited & another (Interested Parties); Unga Investment Limited (Exparte Applicant)

Environment and Land Court at Nairobi
18 May 2023
5,888 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 confirmed that unwritten business tenancies are controlled tenancies, so landlords cannot evict shop tenants with a simple 30-day notice.

What this practically means

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Executive summary

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Unga Investment Limited, the Ex-parte Applicant, sought judicial review orders of Certiorari to quash a Business Premises Rent Tribunal order of 13th October 2022 restraining it from interfering with the tenancy, and Prohibition against continued hearing of BPRT Case No. E916 of 2022 filed by Ligi Limited. Unga contended that the written five-year lease over L.R No. 209/507 (I.R No 17214/1) lapsed in November 2007, the parties thenceforth occupied under an unwritten mutual arrangement constituting a periodic tenancy under Section 57(2) of the Land Act, 2012 terminable by 30 days' notice, and that the tenancy was therefore not a controlled tenancy within the Tribunal's jurisdiction. The Interested Parties countered that the premises were used as a shop, the unwritten tenancy was a controlled tenancy under Cap 301, and the Tribunal had jurisdiction; the 2nd Interested Party further argued that judicial review cannot resolve disputed facts. The court framed two issues: the Tribunal's jurisdiction and whether the reliefs were warranted. Holding that the business tenancy not reduced into writing was a controlled tenancy under Section 2 of Cap 301, terminable only under Section 4(2), and that the Land Act does not override Cap 301, the court found the Tribunal seized of jurisdiction. Applying the Supreme Court's decision in Saisi v DPP, it further held that the reliefs would require merit review of contested facts, which judicial review does not permit. The substantive Notice of Motion dated 11th January 2023 was dismissed with costs to the 1st and 2nd Interested Parties.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

02

Whether the Ex-parte Applicant laid a basis for the grant of Certiorari and Prohibition

Holding

No. The reliefs would require merit review of heavily contested facts, which judicial review does not permit.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.The Notice of Motion Application dated the 11th January 2023 be and is hereby Dismissed
  2. 2.Costs of the application to the 1st and 2nd Interested Parties, to be agreed upon and in default taxed by the Deputy Registrar

Authorities

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Legislation

  • The Land ActSection 57(2)
  • The Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of KenyaSections 2, 4(1), 4(2)
  • Fair Administrative Actions ActSections 7, 11(1) and (2), 11(1)(e) and (h)
  • Constitution of KenyaArticle 259

Cases cited (18)

  • Postal Corporation of Kenya versus Gerald Kamondo Njuki T/a Geka General Supplies
    (2021)eKLR
  • Bachelors Bakery's Ltd versus Westlands Security Ltd
    (1992)KLR 356
  • P.N Gichoho Ngugi versus The County Government of Laikipia & Another
    (2017)eKLR
  • David Cullen v Samuel Kiptalai & 2 Others
    (2021)eKLR
  • Housing Finance Company of Kenya Ltd v Njuguna
    KLR 1176 (CCK)
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others
    (2012)eKLR

    Jurisdiction flows from the Constitution or legislation; a court cannot expand its jurisdiction.

  • Republic v Business Premises Rent Tribunal & Another Ex-parte Albert Kigera Karume
    (2015)eKLR
  • ReHebtulla Properties Ltd
    (1979)KLR 1996
  • Kenya Nation Examination Council versus Republic Ex-parte Geoffrey Gathenji Njoroge & 9 Others
    (1997)eKLR
  • Owners of Motor Vessel Lilian S versus Caltex Oil Ltd
    (1999)eKLR
  • Ukwala Supermaket (Eldoret) Ltd versus Amritlal Sojpar Shah Wholesalers Ltd
    (2017)eKLR

    An unwritten business tenancy is a periodic tenancy and a controlled tenancy under Cap 301, terminable by order of the Tribunal.

  • Municipal Council of Mombasa versusersus Republic & Umoja Consultant Ltd
    (2002)eKLR
  • Zakaria Wagunza & Another versus Office of The Registrar, Academic; Kenyatta University & 2 Others
    (2013)eKLR
  • Commissioner of Lands versus Kunste Hotel Ltd
    (197)eKLR
  • Saisi & 7 others versus Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated))
    [2023] KESC 6 (KLR)

    Merit review in judicial review is limited to uncontroverted evidence; review is not a full-fledged merits inquiry.

  • Judicial Service Commission & another v Lucy Muthoni Njora, Civil Appeal 486 of 2019
    [2021] eKLR

    Nothing legally wrong with some measure of merits review in judicial review to arrive at the justice of the matter.

  • Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019
    [2021] eKLR

    A public agency can be directed to take action but not directed on the manner of exercising discretion.

  • In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011
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

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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 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.