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ELCAllowedJudicial Review 12 of 2020· [2023] KEELC 19185 (KLR)

Republic v The Rent Restriction Tribunal (Nairobi); Musau (Interested Party); Kang'ethe (Exparte Applicant)

Environment and Land Court at Nairobi
26 July 2023
2,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Exparte Applicant, administrator of the estate of her late husband (registered owner of House 626 Buruburu), issued the Interested Party a three months' notice to vacate for non-payment of rent under a tenancy agreement dated February 16, 2015 fixing rent at Kshs 35,000 per month. The Interested Party filed Rent Restriction Case No 702 of 2017 before the Rent Restriction Tribunal (Nairobi), which on August 13, 2019 dismissed the Applicant's jurisdictional objection (raised in defence, not by preliminary objection) and restrained her from evicting the Interested Party or interfering with the tenancy. She moved the Court by Notice of Motion dated September 30, 2020 seeking certiorari to quash the Tribunal's decision and prohibition against further hearing. The Interested Party and the Tribunal argued the application was an appeal disguised as judicial review and that jurisdiction was conceded; the Tribunal asserted the dispute concerned termination of tenancy, not rent value. The court framed three issues: jurisdiction, entitlement to reliefs, and costs. Applying Section 2(1) of the Rent Restriction Act (Cap 296), which excludes dwelling houses with standard rent above Kshs 2,500, and the Motor Vessel Lillian S principle, and following the Machogu and Kagwatha decisions, the court held that the agreed rent of Kshs 35,000 removed the premises from the Tribunal's jurisdiction and that the Tribunal could not assess rent to confer jurisdiction on itself. The permanent injunction against the landlord also offended Article 40. Certiorari and prohibition issued, with costs to the Interested Party.

Key legal issues

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01

Whether the Rent Restriction Tribunal had jurisdiction over a tenancy with an agreed rent of Kshs 35,000 per month

Holding

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.

Reasoning

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.

p. 4
02

Whether the Tribunal's orders violated the Exparte Applicant's property rights

Holding

The Tribunal's decision permanently restraining the landlord from her own premises was contrary to law and infringed Article 40 of the Constitution.

Reasoning

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.

p. 5
03

Whether the judicial review application was an appeal disguised as judicial review

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the suit to be borne by the Interested Party

Authorities

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Legislation

  • Rent Restriction Act (Cap 296)Section 2(1)
  • Rent Restriction Act (Cap 296)Section 5(1)(a)
  • Rent Restriction Act (Cap 296)Section 14(1)
  • Rent Restriction Act (Cap 296)Section 5(1)(m)
  • Fair Administrative Action ActSection 7
  • Fair Administrative Action ActSection 9(2)
  • Constitution of Kenya, 2010Article 40

Cases cited (12)

  • Motor Vessel "Lilliars" case
    (1989) KLR

    Jurisdiction flows from law and a court may not arrogate jurisdiction through craft of interpretation where legislation is clear.

  • Republic v Chairman Rent Restriction Tribunal and another ex parte Ezekiel Machogu and 3 others
    [2003] eKLR

    Where rent is agreed between landlord and tenant, no assessment of standard rent is needed and the Tribunal lacks jurisdiction.

  • Republic v Deputy Chairman, Rent Restriction Tribunal Ex parte Joseph Kagwatha
    [2019] eKLR

    Tribunal lacked jurisdiction where agreed monthly rent exceeded the statutory standard rent.

  • Republic v Chairman, Rent Restriction Tribunal Ex Parte Agatha Njoki Mwangi
    [2015] eKLR

    Cited on Tribunal jurisdiction limits.

  • Adero Adero & another v Ulinzi Sacco Society Ltd
    [2002] eKLR

    No bar to raising any defence, including jurisdiction, without a preliminary objection.

  • Kenya Ports Authority v Modern Holding (EA) Limited
    [2017] eKLR

    Cited on raising points of law without preliminary objection.

  • Lemita Ole Leimein v Attorney General & 2 others
    [2020] eKLR

    Cited on raising jurisdiction and limitation defences.

  • Joseph Kibaara M'Icuga v M'chabari Kinoro
    [2020] eKLR

    Points of law should be raised by preliminary objection at the earliest opportunity.

  • Gladys Praeruan v Betty Chepkorir
    [2020] eKLR

    Cited on raising points of law by preliminary objection.

  • Republic v Public Procurement Administrative Review Board & 2 others Ex Parte Pelt Security Services Limited
    [2018] eKLR

    Judicial review targets the decision-making process, not the decision itself.

  • Gershani Vs Ombima
    (1975) EA 135

    Where rent is agreed, no assessment of standard rent is called for.

  • Shah Vs Aggarwal
    CA Civil Appeal No 60 (1983) KLR

    Where rent is agreed, no assessment of standard rent is called for.

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

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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 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.