Republic v The Rent Restriction Tribunal (Nairobi); Musau (Interested Party); Kang'ethe (Exparte Applicant)
The bottom line
#Kenya's Rent Restriction Tribunal has no power over tenancies where rent exceeds Kshs 2,500 monthly, so its orders can be quashed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Rent Restriction Tribunal had jurisdiction over a tenancy with an agreed rent of Kshs 35,000 per month
The Tribunal had no jurisdiction because the agreed rent exceeded the statutory standard rent cap of Kshs 2,500 under Section 2(1) of Cap 296, and the agreed rent could not be assessed by the Tribunal.
Section 2(1)(c) of the Rent Restriction Act excludes dwelling houses with a standard rent exceeding Kshs 2,500 per month. The tenancy agreement of February 16, 2015 was not disputed and fixed rent at Kshs 35,000 per month. Following the Motor Vessel Lillian S principle and prior High Court decisions, where rent is already agreed the Tribunal cannot assess standard rent to bring the premises within its jurisdiction; jurisdiction flows from law, not from the Tribunal's own determination.
Whether the Tribunal's orders violated the Exparte Applicant's property rights
The Tribunal's decision permanently restraining the landlord from her own premises was contrary to law and infringed Article 40 of the Constitution.
The court accepted the Exparte Applicant's submission that a permanent injunction barring a landlord from her own premises forever is contrary to law and runs afoul of the constitutional protection against arbitrary deprivation of property under Article 40. This reinforced the conclusion that the Tribunal's decision, being without jurisdiction, was unlawful and liable to be quashed.
Whether the judicial review application was an appeal disguised as judicial review
The application was properly within the grounds for judicial review under Section 7 of the Fair Administrative Action Act and was not a disguised appeal.
The Interested Party and the Respondent argued the application was an appeal disguised as judicial review because it attacked the decision rather than the decision-making process. The court did not accept this objection; having found the Tribunal acted without jurisdiction, it held the Exparte Applicant entitled to the reliefs sought, treating the want of jurisdiction as a proper ground for certiorari and prohibition.
Legal principles established
#- The Rent Restriction Act does not apply to dwelling houses whose standard rent exceeds Kshs 2,500 per month, and where rent is agreed above that figure the Tribunal lacks jurisdiction and cannot assess the rent to confer jurisdiction on itself.
- Jurisdiction flows from law and a court or tribunal may not arrogate to itself jurisdiction through craft of interpretation where the legislation is clear.
Court orders
#- 1.An order of certiorari quashing all proceedings and any decision and/or orders made in Rent Restriction Tribunal Case No 702 of 2017 issued on August 13, 2019
- 2.An order of prohibition prohibiting the Rent Restriction Tribunal from hearing any claim relating to the Interested Party's tenancy, possession and occupation of House 626 Buruburu
- 3.Costs of the suit to be borne by the Interested Party
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and the Fair Administrative Action Act; constitutional property rights under Article 40 invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v The Rent Restriction Tribunal (Nairobi); Musau (Interested Party); Kang'ethe (Exparte Applicant)", Case Analysis (2023). Judicial Review 12 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19185/eng@2023-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.